Appeal No. 98-2385
Application 08/403,995
As a further point with regard to the Brown patent, we note that the arrangement of
Figure 6, when considered with each filament of (23) and (29) constructed as in Figure 23
of the patent, would disclose and teach a catheter and a method of making the same which
is substantially identical to that disclosed and claimed by appellants. Contrary to
appellants’ assertions on page 4 of their brief, the fact that the outside filaments in Figure
23 of Brown are wound or twisted around a central core filament does not mean that the
outer filaments necessarily must be considered to be something other than “parallel
individual filaments,” as set forth in claims 1 and 17 on appeal. Webster’s New World
Dictionary, Second College Edition, Prentice Hall Press, 1986, defines “parallel” as “1.
Extending in the same direction and at the same distance apart at every point, so as never
to meet,” and this is exactly what any given pair of the outside filaments seen in Figure 23
of Brown appears to do as they wind around the central filament therein. Thus, appellants’
argument that the twisted filaments as taught in Figure 23 of Brown are “specifically
excluded from the invention claimed by appellants,” is incorrect.
It follows from the foregoing that the examiner's rejection of claims 1 through 3, 6, 7
and 10 through 17 under 35 U.S.C. § 102(b) as being anticipated by Truckai is reversed,
while the examiner’s rejection of claims 1 through 3, 6 through 9, 13 and 17 under 35
U.S.C. § 102(e) as being anticipated by Brown is affirmed.
The decision of the examiner, accordingly, is affirmed-in-part.
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