Appeal No. 2000-0673
Application No. 08/960,276
"the field of stent manufacturing and design is a crowded and
highly competitive field," and quote the following sentence
from Continental Can Co. USA Inc. v. Monsanto Co., 948 F.2d
1264, 1273, 20 USPQ2d 1746, 1752 (Fed. Cir. 1991):
[W]hen differences that may appear technologically
minor nonetheless have a practical impact,
particularly in a crowded field, the decision-maker
must consider the obviousness of the new structure
in this light.
We note however that in the Court's opinion this sentence is
followed by:
Such objective indicia as commercial success, or
filling an existing need, illuminate the
technological and commercial environment of the
inventor, and aid in understanding the state of the
art at the time the invention was made. See In re
Piasecki, 745 F.2d 1468, 1475, 223 USPQ 758, 790
(Fed. Cir. 1984) (secondary considerations "often
establish that an invention appearing to have been
obvious in light of the prior art was not" (quoting
Stratoflex, Inc. v. Aeroquip
Corp., 713 F.2d 1530, 1538-39, 218 USPQ 871, 879
(Fed. Cir. 1983)).
Since appellants have not furnished any evidence to show that 1
the differences between the claimed invention and the prior
1 Argument of counsel cannot take the place of evidence.
In re Wiseman, 596 F.2d 1019, 1023, 201 USPQ 658, 661 (CCPA
1979).
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