Appeal No. 1998-2637 Page 14
Application No. 08/470,142
Everett discloses a hypodermic needle having an oval cross sectional opening in a
plane perpendicular to its longitudinal axis. The examiner has taken the position that it
would have been obvious to align the major axis of the Everett needle with the longitudinal
axis of the vessel “so that the extreme tip of the needle first contacts the blood vessel wall”
(Answer, page 5). The appellants argue that no evidence has been provided in support of
this position, and we must agree that such is the case. While the Everett needle might be
capable of performing the claimed method, it also is capable of piercing the wall of the
vessel and being inserted into the blood vessel while in other orientations with respect to
the longitudinal axis of the vessel. Therefore, the examiner’s position appears to be
grounded in the hindsight afforded one who first viewed the appellants’ disclosure.
The examiner therefore has not established that a prima facie case of obviousness
is presented by Everett, and we will not sustain the rejection of claims 127 and 128.
(8)
We reach the same conclusion with regard to claim 129, which adds to claim 127
the step of expanding the cannula while its outer surface is in contact with the inner surface
of the blood vessel, for Grayzel does not overcome the shortcoming of Everett explained
with regard to the rejection of parent claim 127.
The rejection of claim 129 is not sustained.
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