Interference No. 104,192
Cragg v. Martin v. Fogarty
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.
Cragg dismisses our citation to In re Sovish, 769 F.2d
738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985) and In re Bozek,
416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969), by arguing
that “[b]oth Bozek and Sovish required a disclosure in the
prior art references to render the claims obvious.”). It
appears that Cragg completely misses the point for which we
cited to those cases, i.e., that one with ordinary skill in
the art is presumed to possess some logic and skill that is
independent of what is disclosed in an item of prior art.
Here, the starting point is Fogarty’s claim 41. In that
sense, Fogarty’s claim 41 is the disclosure with which one
with ordinary skill in the art is presented, in determining
whether claims such as Cragg’s claim 59 would have been
obvious over Fogarty’s claim 41. We agree entirely with the
following two paragraphs in Fogarty’s opposition brief at
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