Appeal 2006-2249
Application 10/429,172
cumulative to Gaber’s disclosure of using catheters to deliver stents in his
“Background of the Invention” section (Gaber, 1: 10-15).
Additionally, “[w]here a reference is relied on to support a rejection,
whether or not in a ‘minor capacity,’ there would appear to be no excuse for
not positively including the reference in the statement of rejection.” In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
Because the Examiner did not include the US 6,733,521, US 6,709,425, and
US 6,629,994 patents in the statement of the rejection, we will not consider
them in our patentability analysis of the claims.
We agree with the Examiner’s determination that “[s]ince the stent of
Gaber collapses laterally to fit through the vasculature, it is fully capable of
fitting into a guide catheter likewise sized to fit through the vasculature”
(Answer 6-7). Gaber’s disclosure that catheters are used to deploy stents
into vessels (Gaber 1:10-15) supports the Examiner’s determination that
Gaber’s stent is fully capable of being deployed by a catheter.
As further evidence that a catheter may be used to deploy Gaber’s
stent, Webster’s New World Dictionary defines “catheter” as “a slender tube
inserted into a body passage.” Webster’s New World Dictionary of the
American Language, “catheter”, p. 99 © 1984. Gaber’s manipulator tube
49, outer coupler tube 32, and inner coupler tube 30 used to deploy Gaber’s
stent are a series of nested, slender tubes, thus satisfying Webster’s
definition of “catheter” (Gaber 7:5-19). Accordingly, we agree with the
Examiner that Gaber’s disclosure satisfies Appellants’ first argued
distinction of an anchor “adapted to be deployed by a catheter.”
Regarding Appellants’ second argued distinction, Gaber discloses that
the stent 10 can be reduced and removed from the lumen and patient by
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