Appeal No. 1998-2777
Application 08/477,226
a biocompatiable material laid down using solid free-form fabrication techniques, and wherein said
matrix includes “interconnected lumens within the matrix having openings for connection to ducts within
tissue in a patient,” as required in each of appellants’ independent claims on appeal. The examiner’s
position (answer, pages 11-12) is that because Klebe mentions a three-dimensional tissue structure of
cells which have been precisely positioned and arranged with accuracy in a matrix, such a tissue
structure or matrix “would inherently include interconnected pores and lumens throughout.” We find no
basis in Klebe to reach such a conclusion and the examiner has pointed to none.
In our opinion, the examiner’s position is totally without support in the applied reference and is
entirely based on speculation and conjecture. In this regard, we note that it is well settled that inherency
may not be established by probabilities or possibilities, but must instead be "the natural result flowing
from the operation as taught." See In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326 (CCPA
1981). In the present case, neither the Klebe patent nor the examiner provides an adequate factual
basis to establish that the natural result flowing from following the teachings of that patent would be a
device or matrix structure like that claimed by appellants, wherein interconnected lumens within the
matrix are present and capable of being connected to ducts within tissue in a patient, such as blood
vessels, lymph ducts, exocrine function ducts, excretory ducts, etc.
7
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007