Page 8
Appeal No. 1999-1814
Application No. 08/688,108
of the blade. The knife 11 also has an enlarged head 11b which is narrower than the width of the slot 2
of the cannula. The height of the head is greater than the diameter of the shank but is less than the
diameter of the cannula. The outer end of the knife has an inward or concave cutting edge 11c. Since
the length of the cutting edge is shorter than the height of the knife at its outer end, the surgeon must
rotate the knife through the slot 2 in the cannula to bring the cutting edge to bear against the sheath as6
shown in Figure 13B and then proceeds to make the appropriate cuts in the sheath (column 5, lines 8-
28). In column 3, lines 24-37, Chow also discloses a prior art "conventional surgical technique" for
repairing trigger finger, comprising making an incision I in the palm of the hand, inserting a scissors X,
scalpel or other cutting instrument through the incision, as illustrated in Figures 2 and 3, and cutting the
sheath E to relieve the constriction. The examiner has not made it clear whether it is the "conventional"
technique or the inventive surgical method of Chow which is relied upon in the rejection.
The examiner asserts that it would have been obvious to one of ordinary skill in the art to "make
as small of an incision as possible and to insert the narrowest portion of the instrument into the small
incision as leading edge thereby keeping the scaring [sic: scarring] area of the operation minimal"
(answer, pages 4 and 5).
Rejections based on 35 U.S.C. § 103 must rest on a factual basis. In making such a rejection,
the examiner has the initial duty of supplying the requisite factual basis and may not, because of doubts
6It appears that the movement described by Chow is a turning or steering of the head radially away from
the central axis of the cannula rather than a rotation of the blade about its own axis.
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