Appeal No. 2000-0908
Application No. 08/763,728
engineering design choice and thus does not serve to
patentably distinguish the claimed invention over the prior
art. See In re Kuhle, 526 F.2d 553, 555, 188 USPQ 7, 8-91
(CCPA 1975).
We shall not sustain the standing rejection of method
claims 11 and 20 as being unpatentable over Fecht in view of
Cosgrove. Claim 11 positively recites the step of preventing
blood flow from the cannula in the direction of the aortic
arch, and claim 20 positively recites the step of orienting
the opening in the terminal end of the cannula away from the
aortic arch such that blood is directed only toward the
ascending aorta. The examiner has not explained, and it is
not apparent to us, where these positively recited steps are
taught or suggested by the applied prior art. Accordingly,
the standing rejection of these method claims cannot be
sustained.
In summary, the rejection of claims 1-5, 7, 9-11 and 15-
1Since the range of apex angles covered by claim 16
includes angles in excess of 45E, in the event of further
prosecution the examiner may wish to consider whether
appellant’s original disclosure provides 35 U.S.C. § 112,
first paragraph, descriptive support for this limitation.
10
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