Interference No. 104,192
Cragg v. Martin v. Fogarty
is required], then the Fogarty specification lacks
written description for claim 41 because as
discussed it only describes the sequential
introduction of the anchor section and the first
tubular graft but not the introduction of the anchor
section and first tubular graft as a unitary
structure. There is nothing in the Fogarty
application to convey to those skilled in the art
that Fogarty was in possession of that aspect of the
invention of claim 41, if claim 41 is broadly
construed as proposed.
We have again reviewed Cragg’s preliminary motion 1
(Paper No. 39). Nothing therein can reasonably be considered
as an alternative or contingent argument that if the Board is
not persuaded by Cragg’s primary argument that Fogarty’s claim
41 requires the introduction of the anchor section and the
first tubular graft in a single step then the claim is
nonetheless not described in the specification because of
undue breadth. In the case of Cragg’s preliminary motion 1,
the one argument actually made is the only argument made.
Consequently, the issue now raised by Cragg at final hearing
was neither developed and briefed by the parties during the
preliminary motions stage of this interference, nor considered
by the motions panel when preliminary motions were decided.
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