Interference No. 104,192
Cragg v. Martin v. Fogarty
particular reference. In re Bozek, 416 F.2d 1385,
163 USPQ 545, 549 (CCPA 1969). It cannot be
reasonably argued that one with ordinary skill in
the art is so devoid of skill and common sense that
he or she would not have readily recognized that the
anchor section and the first tubular graft may
either be separately inserted and then joined in
situ, or inserted as a unitary whole. Those are the
only two possibilities with regard to the insertion
of the anchor section and the first tubular graft.
In our view, selecting one of the two readily
apparent choices would have been well within the
basic level of skill and common sense possessed by
one with ordinary skill in the art. Moreover, it is
incumbent upon Goicoechea as the movant to establish
why, given Fogarty’s independent claim 41, one with
ordinary skill in the art would not have known that
the anchor section and the first tabular graft can
be inserted as one or separately. Goicoechea set
forth no persuasive reasons in that regard.
For the foregoing reasons, Goicoechea has failed
to demonstrate that all of its claims 55, 59, 62-65,
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