Appeal No. 2000-1759
Application No. 08/748,637
Like appellant, we find that, in the relevant time frame
(circa 1983), a person of ordinary skill in the art would not
have looked to the invasive, aortic surgical repair method of
Kononov and a device like that of Kononov, wherein the device is
sized to be inserted directly into an opening formed in the aorta
itself, to modify a minimally-invasive repair method like that in
Choudhury where the repair device is inserted at a location
remote from the aorta, such as the smaller femoral artery in a
patient's leg, and then fed through the patient's vasculature to
the point in the aorta where repair is needed. In that regard,
we note that the examiner has essentially provided no response to
the evidence and arguments presented by appellant in the
declarations by Dr. Thoshinsky and the brief and reply brief.
More specifically, the declarations by Dr. Thoshinsky, who
practiced in the field of vascular surgery for 38 years and
during the relevant time frame of 1979 through 1983, set forth
numerous reasons why one of ordinary skill in the art at the time
of appellant's invention would have found no motivation in the
references applied by the examiner for making the combination
urged in the rejection on appeal, and instead would have found
many disincentives in those references for attempting to make
such a combination. In the face of appellant's evidence setting
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