Appeal No. 1997-2667
Application No. 07/632,907
appellants’ assertion that Nile does not describe a flexible
and stretchable titanium mesh with “strands of thickness less
than 0.125 cm and having a void fraction of at least 90%.”
Compare Brief, page 7, with Answer in its entirety. Nor has
the examiner challenged the propriety and sufficiency of
appellants’ assertion and evidence (a declaration executed by
John E. Bennett on October 26, 1994 under 37 CFR § 1.132)
directed to show that the claimed thickness and void fraction
of a titanium mesh are not inherently present in the largest
Niles titanium mesh, the number 9 mesh, relied upon by the
examiner. Compare Brief, page 7, with Answer in its entirety.
Under these circumstances, we are constrained to reverse the
examiner’s decision rejecting all of the appealed claims under
35 U.S.C. § 102(b).
The examiner has also rejected claims 26, 28, 30 through
38, 43 and 44 under 35 U.S.C. § 103 as unpatentable over the
combined
disclosures of Watkins and Niles. In order to establish a
prima facie case of obviousness under Section 103, the prior
art teachings as a whole must be sufficient to suggest to one
of ordinary skill in the art making the modification needed to
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