Appeal 2006-2249
Application 10/429,172
The rejections as presented by the Examiner are as follows:
1. Claims 5-6 are rejected under 35 U.S.C. § 112, 1st paragraph, as
failing to comply with the enablement requirement.
2. Claims 1-8 are rejected under 35 U.S.C. § 102(b) as being
unpatentable over Gaber.
We select claims 1 and 5 as the representative claims to discuss in our
opinion below.
OPINION
35 U.S.C. § 102(b) REJECTION
Appellants argue that Gaber fails to disclose the following two claim
features: (1) Gaber’s stent is “adapted to be deployed by a catheter” and (2)
“a recapture mechanism adapted to assist the recapture of at least a portion
of the device into the catheter” (Br. 8). Appellants contend that Gaber’s
stent is “specifically designed to be deployed without a catheter” (Br. 8).
Appellants further contend that Gaber’s stent “would not otherwise be
compatible with catheter delivery or recapture” (Br. 9).
We are unpersuaded by Appellants’ arguments for the reasons
discussed below.
As a preliminary matter, we will not consider or rely on the additional
references cited by the Examiner in his Answer (i.e., US 6,733,521; US
6,709,425; US 6,629,994) to show that “the type of catheter . . . for which
Gaber . . . is adapted . . . and fully capable of use with as [sic, is] well know
[sic, known] in the art of delivering stents to protect the body from the stent”
(Answer 6). The disclosures contained in those references are merely
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