Appeal No. 1998-2813
Application No. 08/463,203
step b until the desired matrix is formed. 1 It is the examiner's
position (answer, pages 5-6) that
Fink et al is considered to anticipate
the claimed product even though the
particular method steps are not recited
therein because it is believed that the same
product would result from the method
limitations as set forth in the claim; see
MPEP § 2173.05(p). Alternatively, it is not
explicitly clear that the same material as
disclosed by Fink et al would be the result
of the claimed method steps. However, the
Examiner posits that the claimed product is
at least obvious in view of Fink et al alone
because the Fink et al method would result in
a product which is at least substantially
identical to the claimed product.
The problem we see with the examiner's position here is that
he has made no factual findings to support the bare conclusion
stated, i.e., that the Fink method would result in a product
which is at least substantially identical to the claimed product.
Like appellants, we fail to find in Fink any teaching or
suggestion of a medical device as claimed wherein the matrix
layers of the device are formed from a biocompatible polymeric
powder bonded using a polymer/solvent printed at locations where
1 It appears to us that since the matrix as defined in
independent claim 19 and also in independent claim 21 is formed
of "successive layers" of biocompatible polymeric/composite
material, that step c) in each of these claims should read ---
repeating steps a and b until the desired matrix is formed ---,
thereby providing the "successive layers" that each of these
claims requires.
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