Appeal No. 1997-4292 Page 10
Application No. 08/515,344
of a circle. The appellant also argues (brief, pp. 2-3) that
the examiner has not
presented any evidence that the claimed "bridge" is inherent
in Pinchasik.
After careful consideration of the respective positions
articulated by the appellant and the examiner and the
teachings of Pinchasik we find ourselves in agreement with the
appellant's position that claims 1 to 4 are not anticipated by
Pinchasik. In that regard, it is our determination that the
"bridge" identified by the examiner within the "cells" of
Pinchasik does not lengthen to form an arc of a circle as
recited in claims 1 to 4. At best, the "bridge" identified by
the examiner within the "cells" of Pinchasik lengthens to form
an arc of an ellipse. Additionally, the examiner's position
that it is inherent that if Pinchasik's stent is expanded far
enough, the bridges will straighten out and form a continuous
ring around the middle of the stent is shear speculation
without any support within the disclosure of Pinchasik.1
1When relying upon the theory of inherency, the examiner
(continued...)
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