Appeal No. 1999-2030 Page 9
Application No. 08/423,077
From our review of the record in the application, the
examiner never specifically found that the structure of Kolff
(e.g., the balloon 46) corresponding to the recited means
(i.e., "means for retaining . . .") was equivalent to the
structure disclosed by the appellant (i.e., the various hooks
shown in Figures 1-10 and the helix shown in Figure 14).
Moreover, the examiner never applied any of the above-noted
indicia to support a conclusion that the structure of Kolff
(e.g., the balloon 46) is or is not an "equivalent" of the
structure disclosed by the appellant in the context of 35
U.S.C. § 112, sixth paragraph. Thus, it is our view that the
examiner has not met the burden of establishing a case of
anticipation since the examiner has not established the
structure of Kolff (e.g., the balloon 46) is an "equivalent"
of the structure disclosed by the appellant.
In any event, in applying the above-noted tests for
determining equivalence under the sixth paragraph of 35 U.S.C.
§ 112 to ascertain whether the structure of Kolff (e.g., the
balloon 46) is or is not an "equivalent" of the structure
disclosed by the appellant, we conclude that the structure of
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