Appeal No. 2001-0490 Page 8
Application No. 08/524,206
THE REJECTION UNDER 35 U.S.C. § 103:
As set forth above, claims 5, 7, 13 and 14 stand or fall together with
representative claim 1. As discussed above, we have found that claim 1 is
anticipated by Chu ‘522 and Chu ‘985. As set forth in Structural Rubber Prods.
Co. v. Park Rubber Co., 749 F.2d 707, 716, 223 USPQ 1264, 1271 (Fed. Cir.
1984), “a disclosure that anticipates under § 102 also renders the claim invalid
under § 103, for ‘anticipation is the epitome of obviousness,’ In re Fracalossi, 681
F.2d 792, 215 USPQ 569 (CCPA 1982).”
Accordingly we find no error in, and therefore affirm, the rejection of claim
1 under 35 U.S.C. § 103 as obvious over Chu ‘985 or Chu ‘522 in the alternative,
in view of Bielinska, Mannino, Marishita and Tomita. As discussed supra claims
5, 7, 13 and 14 fall together with claim 1.
OTHER ISSUE
If upon further prosecution, the examiner remains of the opinion that the
specification does not provide an enabling description of the method of treating
restenosis set forth in claim 8, the examiner should clearly articulate his position
with regard that claim and provide appellants with a full and fair opportunity to
respond.
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