Appeal No. 2000-1759
Application No. 08/748,637
The examiner urges (answer, page 4) that it would have been
obvious to one of ordinary skill in the art at the time of
appellant's invention (circa 1983) "to have utilized the
inflatable portion of Kononov with the method of Choudhury such
that the repair device could be securely implanted into the lumen
by the highly controllable expansion force generated by the
inflatable portion." For a variety of reason set forth in the
brief, reply brief and declarations by Dr. Thoshinsky, appellant
argues that the examiner's conclusion of obviousness is improper
because, in the relevant time frame, there would have been no
motivation to modify Choudhury's method to use Kononov's step of
balloon expansion.
After a careful assessment of all of the evidence before us,
we agree with appellant that one of ordinary skill in the art at
the time of appellant's invention would have found no motivation
in the references applied in the rejection before us on appeal
for making the combination urged by the examiner (i.e., for
taking the balloon expansion portion and associated expansion
step in Kononov and attempting to employ them in the particular
repair device and minimally invasive surgical method disclosed in
Choudhury).
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