Appeal No. 2000-1934 Page 8
Application No. 08/779,420
having an outer diameter of about 9 French to about 18 French
(i.e., about 0.117 to about 0.234 inches), a modulus of
elasticity between about 1000 psi to about 2000 psi, a
specific gravity between about 1.05 grams per cc to about 1.25
grams per cc and a durometer between about 70 Shore A to about
90 Shore A, with the area defined by lumens comprising between
about 30% and 60% of the cross-sectional area of the shaft.
The examiner finds that Muto does not disclose the claimed
length, diameter, modulus of elasticity, specific gravity and
durometer, but considers them mere matters of "obvious design
choice to fulfill Applicant's intention" (answer, p. 5). As
for the material properties of the PVC, from which Muto's
catheter is preferably made (col. 5, ll. 51-52), the examiner
points out that one skilled in the art would have recognized
that there are different types of PVC already invented having
different properties and that, as such, these properties and
characteristics are inherent in the material. This reasoning3
is flawed, for the reasons discussed above.
Although the statement of the examiner's position is confusing, it3
appears that the examiner is taking alternative positions with regard to the
material properties of the catheter, namely, the material properties are
either inherent or obvious matters of design choice.
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