Appeal No. 2000-2047 Page 8
Application No. 09/014,759
from its end which is closest to the centering wire, for cutting through the tubular body
organ structure. In the first of the alternative rejections, it is the examiner’s view that since
Makower discloses a number of different “cutting member” shapes, such as are shown in
Figures 2, 17 and 29, it would have been obvious to one of ordinary skill in the art to
replace those with the star-shaped one shown in Kim “in order to form an effective cut in
the blood vessel,” since this is “apparently” what Kim teaches to be “desirable” (Answer,
page 4). The examiner’s theory is defective on several grounds. First of all, Makower
actually shows only one piercing tip configuration, and that is the “sharp-tipped” probe
pictured in Figures 2, 18 and 20. No means for piercing the tissue is shown in Figures 17
and 29, which show the guide wires already in place through the tissue, with no indication
given as to how they got there. In our view, the conclusion to be drawn from this is that all
of the piercing is done by the sharp-tipped probe, and therefore Makower does not teach
using several different configurations, and the examiner’s reasoning is defective on this
point. Second, Figure 17 demonstrates that when a larger opening is required, Makower
makes it by pushing dilating tip 170 through the small opening initially made by the guide
wire, and then enlarging the opening by making an annular cut with rearward-facing blade
171. Thus, there is no teaching in Makower of making a larger initial opening by the use of
a larger piercing device. As far as Kim is concerned, the examiner has not directed us to
an explicit teaching of why the star-shaped perforating tip “effectively” cuts the tissue and
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