Appeal No. 96-0211
Application 07/929,150
appearances of appellant’s stent and Palmaz’s graft pointed out
by appellant, as set forth above. The examiner improperly
focuses on the design concept of a stent which is made of wire,
has a tubular shape, and has numerous rhomboid cells in a
repetitive pattern, rather than considering the overall
appearance, or visual effect as a whole, of the designs of
appellant and Palmaz. See Harvey, 12 F.3d at 1064, 29 USPQ2d at
1208.
Because of above-noted differences between appellant’s stent
and Palmaz’s graft, appellant’s stent and Palmaz’s graft do not
have design characteristics which are basically the same. Thus,
Palmaz is not suitable as a primary reference. See Rosen, 673
F.2d at 391, 213 USPQ at 350. We therefore do not sustain the
rejection over Palmaz. Also, because Palmaz is not suitable as a
primary reference, and because the examiner has not argued, and
it does not appear, that Wiktor is suitable as a primary
reference, we do not sustain the rejection over Palmaz and
Wiktor. See id.
5
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007