Appeal No. 97-4119 Page 5
Application No. 08/369,545
and the steps recited in the body of the claims call for
penetrating the tissue, introducing an expandable member “in
the anatomical tissue . . . at the obstructed site” and
expanding the expandable member to displace the tissue to
create a space “at the obstructed site.” The examiner is of
the view that the language of this claim is broad enough to
read on Sinnreich, which discloses a device for penetrating the
abdomen and expanding a membrane therein, while the appellants
argue that it is not. We find ourselves in agreement with the
examiner, and we therefore will sustain the rejection of claim
1. Our reasons for arriving at this conclusion follow.
From our perspective, the essence of the appellants’
arguments appears to be that the claimed method is limited to
creating a space in solid tissue or the like where no space, or
a very small space, previously existed. However, that is not
what is recited in claim 1, considered literally or when read
in the light of the specification. The method recited in the
claim operates upon “anatomical tissue” which, according to the
specification, “include[s] portions or the entireties of all
anatomical parts” (page 3). The Sinnreich device shown in
Figure 5 does just that, in that it penetrates the tissue of
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Last modified: November 3, 2007