Appeal No. 1999-1964 Page 5
Application No. 08/349,665
not attract or help thrombus toward the cutter (Brief, page 6; Reply Brief, page 3). In
view of the explicit teachings of Kensey set forth in the preceding paragraph, we find
this argument not to be persuasive.
We therefore conclude that the methods recited in claims 37 and 38 are
anticipated by Kensey, and the rejection will be sustained. Since the appellants have
not argued the merits of claims 41-47 and 49-57, which are dependent from both
independent claims, they are grouped with claims 37 and 38, and fall therewith.
However, we reach the opposite conclusion with regard to claim 48, which also
depends from claims 37 and 38. Claim 48 recites the steps of connecting the second
(discharge) passage to a metering device “which controls the rate of flow of fluid and
thrombus or other material in said second passage,” and “metering the removal of
thrombus or other material . . . at a rate less than the rate which would result without
metering” (emphasis added). No such teaching is disclosed in Kensey. If an auxiliary
device is to be used in the discharge passage, Kensey teaches that it will apply
negative pressure, which is the antithesis of the steps recited in claim 48. The rejection
of claim 48 as being anticipated by Kensey is not sustained.
The Rejection Based Upon Neracher
This rejection under 35 U.S.C. § 102(e) is directed to independent claims 39 and
40 and dependent claims 41-45 and 48-50. Neracher discloses a device and method
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007