Appeal No. 1998-2381
Application No. 08/304,725
table, operating room monitors and/or surgical team.
Accordingly, the claimed perfusion assembly solves a number of
known problems in the art. Compare In re Kuhle, 526 F.2d 553,
555, 188 USPQ 7, 9 (CCPA 1975) wherein the court indicated
that
the rationale of "obvious matter of design choice" applies
when a modification is made which "solves no stated problem.”
Therefore, we do not agree that the examiner has a valid basis
for asserting that it would have been an obvious matter of
mechanical "design choice" to provide a central cavity adapted
to receive an oxygenator between at least two flanking units.
From our perspective, the examiner has impermissibly
relied upon the appellants’ own teachings in arriving at a
conclusion of
obviousness. This being the case, we will not sustain the
rejection of independent claims 1 and 48 under 35 U.S.C. § 103
based on the combined teachings of the APA, Fort and Rota.
Since claims 2 through 7, 9 through 15, 17 through 36 and 49
through 56 are dependent on either claim 1 or claim 48 and
9
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