Interference No. 103,950
of Nardella’s claim 35 to another known surgical stapler
embodiment renders the subject matter of claim 10 obvious over
the subject matter of Nardella’s claim 35, this is not an
argument which establishes why one of ordinary skill in the
art would have been motivated by the teachings or suggestions
of the prior art to apply the electrosurgical energy through
the projecting member. As such, Nardella has not established
the obviousness of the subject matter of claim 10.
In regard to claim 11, Nardella argues that it is well
known that the rigid distal and proximal ends of the stapler
may be adapted to permit rotation of the staple forming
assembly relative to the handles and directs our attention to
U.S. Patent No. 3,643,851 to Green and U.S. Patent No. Re.
28,932 to Noiles. However, Nardella has not established why
a person of ordinary skill in the art would have been
motivated to modify the stapler of Nardella’s claim 35 so that
the rigid distal and proximal ends of the stapler are
rotatably coupled. As such, Nardella as failed to meet its
burden of establishing obviousness with regard to claim 11.
In regard to claim 12, Nardella states only that claim 12
depends from claim 10 and is not patentably distinct from the
prior art (Nardella’s claim 35). Nardella has not met its
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