Appeal No. 2000-0908
Application No. 08/763,728
claim 1 that are directed to the cannula per se.
It is generally well settled that the particular manner
in which a device or article is intended to be used cannot be
relied on to distinguish a claimed structure from the prior
art. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657
(Fed. Cir. 1990); In re Yanush, 477 F.2d 958, 959, 177 USPQ
705, 706 (CCPA 1973); In re Casey, 370 F.2d 576, 580, 152 USPQ
235, 238 (CCPA 1967). Also note In re Schreiber, 128 F.3d
1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997), and
LaBounty Mfg., Inc. v. United States Int’l Trade Comm’n, 958
F.2d 1066, 1075, 22 USPQ2d 1025, 1032 (Fed. Cir. 1992). In
that the cannula of Fecht reasonably appears to be fully
capable of directing blood flow into the ascending aorta and
away from the aortic arch, claim 1 does not distinguish over
Fecht’s cannula on the basis of the intended use recited in
the claim. Furthermore, appellant’s attempt to distinguish
the subject matter of claim 1 over Fecht on the basis of
“forward” and “rearward” designations for the closed and open
sides, respectively, is misplaced. The structure of
appellant’s cannula does not undergo a metamorphosis to a new
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