Appeal No. 2000-2047 Page 4
Application No. 09/014,759
that it “is so well known in the surgical instrument art to rotate an annular blade as it is
advanced through tissue in order to provide a good cutting action” as to make it obvious to
one of ordinary skill in the art (Answer, pages 3 and 4). The appellants reply by setting
forth a number of reasons why there would have been no suggestion to combine selected
features of the two embodiments in the manner proposed by the examiner, and that even if
combined they would not yield the claimed invention (Brief, pages 7-15).
We find ourselves in agreement with the appellants that the teachings of Makower
do not render obvious the subject matter recited in claim 1. Our reasoning follows.
In the embodiment of the Makower invention shown in Figure 2, a catheter is
advanced through a tubular body organ over a guide wire. Extendable outwardly at an
angle to the axis of the catheter and the guide wire is a sheath 26 on the end of which is a
sharp-tipped probe 27. In operation, probe 27 is pushed through the wall of the tubular
organ alone or along with sheath 26, and it pierces the wall of the tubular body organ from
inside to outside and then proceeds through the adjacent tissue to pierce the wall of
another tubular body organ from outside to inside. See column 4, line 41 et seq. There is
no explicit teaching that the probe and the sheath make an annular cut, create an annular
aperture by removing tissue bounded by an annular cut, or advance through the tubular
body organ structure by rotation, all of which are required by the claim. Nor, in our view, is
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