Appeal No. 2001-0599 Page 6
Application No. 08/555,198
2. Obviousness
The examiner rejected claims 23-27, 30, and 35-41 under 35 U.S.C. § 103
as obvious in view of the combined teachings of Kitrilakis, Dangman, and
Goldberg. The examiner characterized Kitrilakis as “rais[ing] the problems of
indwelling catheters, but disclos[ing] little in terms of inhibition of bacterial
infection absent a steady supply of antibacterial agent, as opposed to
incorporation into the catheter itself.” Examiner’s Answer, page 5.1 The
examiner found the deficiencies of Kitrilakis to be remedied by Dangman and
Goldberg who, “also addressing the problems of medical devices in contact with
bacterial sources of infection, are shown to have presented the means to simplify
such bacterial inhibition; incorporation of an antibacterial coating composition
with the device itself.” Id. The examiner concluded that
it would be obvious to one of ordinary skill in the art of medical
devices at the time the invention was made to use one of
Kitri[lak]is, modified with the further developments in order to
optimize ease of use and antiseptic character Dangman and to
provide acceptable protection and duration of effect, minimization of
tissue damage as GOLDBERG teaches. . . . One having ordinary
skill in the art would be motivated to perform these modifications in
order to provide less bulky means of infection control when utilizing
medical devices.
Id., page 6.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of coming forward with evidence or argument shift to the
1 The examiner also characterized Kitrilakis as “show[ing] the instantly claimed implanted long
term urinary devices and peritoneal dialysis catheters . . . coated with an antibacterial
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