Appeal No. 96-2866 Page 4
Application No. 08/185,221
nothing in Longfellow which either teaches or fairly suggests
that the wires 33 and 34 are Kirscher-type wires and "are
inserted into and through the bone by drilling the wires into
the bones in the normal matter" as the examiner asserts.
Longfellow makes no mention of Kirscher wires and merely
broadly states that "wires" are "inserted" through the bone
fragments (see column 1, lines 39 and 40; column 2; lines 26
and 27). It does not follow that just because it is known in
the art to drill Kirscher wires into bones by utilizing a
rotary drill, that the "wires" 33 and 34 of Longfellow are
likewise drilled into bones. Insofar as the broad statements
in Longfellow that the wires 33 and 34 are "inserted" through
the bone fragments are concerned, holes may have been first
drilled through the bone fragments by a drill bit and the wires
thereafter inserted through the holes. Moreover, it is not
apparent that the wires of Longfellow even have the capability
of being drilled into bones by means of a rotary drill. That
is, there is no indication that the wires 33 and 34 have
cutting edges or similar elements which would provide such
capability. Obviousness under § 103 is a legal conclusion
based on factual evidence (In re Fine, 837 F.2d 1071, 1073, 5
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