Appeal No. 2001-0645
Application No. 09/055,472
provide for a prosthesis enjoying enhanced bulk and having a
consistency approaching that of fat, thereby further serving to
approximate the natural feel of mammary tissue” (Paper No. 3,
page 3). Further amplification of the examiner’s rationale in
rejecting the appealed claims is found on pages 3-4 of the
answer, wherein the examiner states:
Perry et al’s use of the term “gel” clearly refers to
any gelatinous and “jelly-like” materials and further
teaches that it is the physical characteristics of the
gel material which provide the physical characteristics
of the medical implants of their invention (col. 2,
lines 12-16). Therefore, Examiner maintains the
position that it is prima facie obvious to substitute
Perry et al’s cellulose gelling agent with any one of
well known gelling agents, including the instant
glucomannan, in Perry et al’s medical implant with a
reasonable expectation of success in obtaining a
medical implant having similar physical characteristics
imparted by the gelling agent based on their equivalent
gel forming functions.
The examiner also takes the position (answer, page 4) that
the substitution of McGinley’s composition of MCC and glucomannan
for Perry’s gel would have been obvious because appellants have
not established the criticality of using the particular gelling
agent called for in the claims in an implant.
Reference is made to the first Office action (Paper No. 3)
and to the examiner’s answer (Paper No. 12) for a complete
exposition of the examiner’s position.
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