Appeal No. 1999-0712 Page 8
Application No. 08/748,669
We have considered the appellants' argument (brief, pages 7-9) that the appellants'
device achieves an important advantage over the Schatz and Wolff references in that a surgeon
can immediately determine, using the appellants' device, whether the stent lies across the whole
stenosis, regardless of the angle the stenosis makes with respect to the direction of imaging,
merely by viewing the imaging, since the radiopaque markers identify the ends of the device
(i.e., no stent structure extends beyond the markers), but we do not find it persuasive. Initially,
we note that an articulated graft 70' as illustrated in Figure 7 of Schatz is capable of being used
to treat a stenosis which is shorter than the length of the central graft 70, in which case the
surgeon can quickly determine from the imaging whether the central graft 70 lies across the
whole stenosis, since the ends of the graft 70 are identified by the radiopaque connector
members 100, as modified by Wolff. Moreover, as the argued advantage can only be achieved
by providing a radiopaque marker at each end of the stent, the appellants' argument is not
commensurate in scope with claim 41, which only requires a radiopaque marker at an end of
the stent. To the extent that the appellants' argument is directed to use of the device to treat a
stenosis which is of approximately the same length as the entire device, since the asserted
advantage results from the fact that no part of the device extends beyond the radiopaque
markers, it is not commensurate in scope with any of the claims on appeal, which do not
preclude the ends of the "stent" being connected to other stents.
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