Interference No. 104,192
Cragg v. Martin v. Fogarty
The argument is without merit. We stated (Paper No. 108,
at 15) that there are “only two possibilities with regard to
the insertion of the anchor section and the first tubular
graft” (emphasis added). In that context, the second tubular
graft is uninvolved, and how it is introduced is irrelevant.
We adopt and reiterate herein the following portion of
our decision on preliminary motions concerning Cragg’s
preliminary motion 2 (Paper No. 108, pp. 14-16):
Additionally, with respect to Fogarty’s claims
41-69, Goicoechea is improperly reading into those
claims a specific embodiment from Fogarty’s
disclosure rather than focusing on the language of
the claims themselves. As we discussed in the
context of Goicoechea’s preliminary motion 1,
Fogarty’s independent claim 41 is broadly recited
and imposes no particular manner for the insertion
of the anchor section and the first tabular graft.
Given Fogarty’s claim 41, it is left to the
discretion of one with ordinary skill in the art
just how to introduce the anchor section and the
first tubular graft. One with ordinary skill in the
art possesses a certain basic level of skill. See,
e.g., In re Sovish, 769 F.2d 738, 743, 226 USPQ 771,
774 (Fed. Cir. 1985) ([Applicant's] argument
presumes stupidity rather than skill). A conclusion
of obviousness also may be made based on the common
sense of the person of ordinary skill in the art
without any specific hint or suggestion in a
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
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