Appeal No. 1999-0076
Application No. 08/348,699
and a permanent reinforcing element is colorless or white, the
surgeon is more rapidly able to ascertain which element is
permanent.
In our opinion, one having ordinary skill in the art,
from a combined consideration of the applied teachings, would
have been motivated to use a PGA material for fabricating the
surgical fastener of Korthoff (Fig. 2). However, in this
instance, each of the fastener member and retainer member
would be given the same color so that the surgical fastener
would be visible to a surgeon against contrasting backgrounds,
following the teaching of Glick. This is not the contrasting
color arrangement between portions of the latching member and
the retaining member of a surgical device, as required by
independent claim 1, as well as by independent claims 7 and 9.
As we see it, only reliance upon appellants’ own teaching and
impermissible hindsight would have enabled one having ordinary
skill to derive the claimed invention from the applied prior
art. Since the evidence of obviousness before us would not
have been suggestive of the claimed invention, the rejection
under 35 U.S.C. § 103 must be reversed.
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