Appeal No. 1999-2649
Application 08/483,291
distal segment [of the elongated tube (claim 21's “hollow
placement device”)] to bend when the elastic member is in its
bent shape,” the “bent shape” being defined in claim 2 as
being “when the alloy is in its stress-induced martensitic
state” (col. 17, lines 34 and 35). Since claim 21 requires
that the hollow placement device stresses the memory element
so that it is in its SIM state, while claims 1 and 2 of the
patent require that the elastic member (memory alloy element)
cause the tube (hollow placement device) to bend when the
member is in its SIM state, i.e., that the tube does not
stress the elastic member, we find no basis for concluding
that the quoted limitations of claim 21 would be obvious over
the structure recited in patent claims 1 and 2, or vice versa.
Rejection (2) therefore will not be sustained.
Rejection (3)
We will not sustain this rejection.
A reference does not qualify as prior art under 35 U.S.C.
§ 102(e)/103 unless it is a U.S. patent with an effective
filing date prior to the effective filing date of the
application. MPEP § 706.02(a), p. 700-11, col. 1, para. (A)
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