Appeal 2007-0850
Application 10/733,292
extending across the lumen of an intersecting vessel. The Examiner relies
on Cragg’s statement that “[t]he graft 13 may be co-extensive with the wire
helix; or it may be shorter than the wire helix” (Cragg, col. 3, ll. 29-31). The
Examiner does not point to any other description of this embodiment in
Cragg. The Examiner therefore appears to conclude that any apical wire
structure extending from the end of an intraluminal prosthesis will inherently
be capable of extending across an intersecting vessel.
We do not agree. As noted above, to establish inherency, the
Examiner must demonstrate that the asserted inherent element is necessarily
part of the reference’s disclosure. Continental Can, 948 F.2d at 1268, 20
USPQ2d at 1749. However, Cragg does not state that the wire structures
extending from the end of the device form apices; the drawings do not
appear to show any extending wires that form a shape that would be
considered an “apex.” In addition, Cragg does not state how far the wire
structure may extend from the end of the device. Nor do the drawings
provide any clear guidance regarding the proportions of the embodiment
described at column 3, lines 29-31. Cragg therefore does not provide
sufficient evidence to conclude that the embodiment relied on by the
Examiner will necessarily have wire apices capable of extending across the
lumen of an intersecting vessel.
Because the Examiner does not point to, and we do not see, sufficient
evidence to establish that Cragg’s device will necessarily have wire apices
capable of extending across the lumen of an intersecting vessel, we do not
agree that Cragg inherently meets that limitation. We therefore reverse the
anticipation rejection based on Cragg.
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