Interference No. 103,950
applied to the cutter patentably distinguishes claim 5.
However, Nardella’s claim 37 recites that the high frequency
energy is applied to the staple and the cutter. As such,4
Nardella is correct in arguing that Tsuruta has made no
meaningful argument to the motion in respect to claim 5.
Moreover, the fact that Tsuruta has not meaningfully
opposed the designation of claim 5 as corresponding to Count 2
does not relieve Nardella of the burden imposed by 37 CFR §
1.637.
In view of Nardella’s lack of discussion concerning the
suggestion or motivation to modify the surgical device of the
prior art (Nardella’s claim 37) such that the anvil and
cartridge are curved and rotatably connected, it is our
holding that Nardella has failed to meet its burden of
establishing obviousness with regard to claim 5.
In regard to claim 6, Nardella argues that having a
cutting guide which curves along the lengths of the anvil and
cartridge and includes a drives means for moving the cutter
along the cutter guide are inherent features in the prior art
(Nardella’s claim 37) and is clearly shown in Green ‘315.
4Count 2 recites that the electrosurgical energy is
applied to the staple and the cutter.
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