Appeal No. 1999-2728 Page 3
Application No. 08/423,963
Smith discloses a retention suture and suture device
arrangement wherein a retention suture 35 is looped around an
incision 31 only in the muscle and fascial tissue layers 34 and
drawn up tightly through a tubular retention suture device 20 on
opposite sides of a dividing wall 24, with the ends 35a, 35b tied
in a knot 36 over a spindle element 25 located at the top end 22
of the device 20. See Figure 6 and col. 4, lines 5-47, of Smith.
It is the examiner's position that claims 1-11 are clearly
anticipated by Smith. In particular, the examiner considers the
device 20 to be an elongated anchor member as recited in claim 1.
The examiner contends that the suture 35 is "attached to the
anchor member between opposite ends of the anchor member" as also
recited in claim 1, "because the suture is inserted through the
retention member and [fastened] to it" and thus "is actually
attached to the retention element at any point" (answer, pp. 3-
4).
Like appellant, we observe that Smith's suture 35 is
attached to the device 20 only by means of the knot 36 tied to
the spindle 25 and that, when the suture is so attached, it lacks
"an end free for manipulating the tissue into which the anchor
member [device 20] is inserted," as required in claim 1. In any
event, the absence of a free end notwithstanding, the suture is
not capable of manipulating the tissue 32, 33 into which the
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