Appeal No. 1997-3712
Application 08/474,340
When a determination is made whether references would
have fairly suggested a claimed invention to one of ordinary
skill in the art, the references necessarily must be
interpreted as they would have been understood by one of
ordinary skill in the art. Appellants rely upon the
declaration of Kaplan as evidence of how one of ordinary skill
in the art would have interpreted Miller and U.S. 3,728,938 to
Glick, of which the Glick patent applied by the examiner is a
continuation (brief, pages 12-16).
Kaplan argues that one of ordinary skill in the art
reading Miller would have understood that synthetic absorbable
sutures could be packaged only in tear-open packages due to
the extreme moisture sensitivity of those sutures (page 14).
within the inner sealed envelope would be disposed within the
sealed pocket. The examiner has not established, however,
that the applied references would have fairly suggested, to
one of ordinary skill in the art, using as Glick’s outer
envelope a peelable, substantially moisture impervious pouch
made of a metal foil laminate as recited in appellants’ claim
81. Glick discloses (col. 10, lines 43-48) that various
plastic, paper and metallic foil materials are suitable for
use as the outer strippable envelope, particularly the plastic
films of Buccino, but the examiner has not explained why this
disclosure would have fairly suggested, to one of ordinary
skill in the art, use of a metal foil laminate such that the
pouch formed is substantially moisture impervious.
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