Appeal No. 2000-2047 Page 3
Application No. 09/014,759
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence of
our review, we make the determinations which follow.
Independent claim 1 is directed to an apparatus for creating an aperture in a tubular
body organ. It comprises a delivery sheath insertable axially along the interior portion of
the tubular body organ, a centering wire insertable axially along the interior of the sheath
and adapted for piercing through the tubular body organ at an access site from the inside
to the outside, and a cutting catheter insertable over the centering wire
including a distal end adapted for advancing through said patient’s existing
tubular body organ structure at said access site by rotation of said cutting
catheter to produce an annular cut . . . from inside . . . to outside said tubular
body organ structure to form said aperture by removal of tissue bounded by
said annular cut (emphasis added).
It is the examiner’s position that all of the subject matter recited in this claim is taught by the
embodiment shown in Figure 2 of Makower, except for a cutting catheter for cutting an
annular aperture. For this, the examiner looks to Makower’s Figure 17, concluding it would
have been obvious to use the annular knife disclosed therein with the Figure 2
embodiment to provide a larger aperture. As for the requirement in the claim that the
cutting device be adapted to produce the annular cut by rotation, it is the examiner’s view
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