Appeal No. 2002-1117
Application No. 09/569,607
OPINION
In reaching our decision in this appeal, we have given
careful consideration to appellants' specification and claims, to
the applied prior art reference, and to the respective positions
articulated by appellants and the examiner. As a consequence of
our review, we have made the determination which follows.
In rejecting claims 1 through 9 under 35 U.S.C. § 102(e),
the examiner provides the following commentary
Referring to all embodiments noting those shown in
figures 10 and 23, Berg et al teaches an anastomoses
connector comprising an annularly continuous structure
having a plurality of first members and a plurality of
second members. Berg et al teaches using a superlastic
material such as nitinol (answer, page 3).
On pages 4 and 5 of the answer, the examiner further
provides insight into his position by noting that the language "a
structure which is annularly continuous and configured for
disposition annularly within the inside of the tubular graft
conduit" of claim 1 on appeal is merely functional language which
the device of Berg '416 is fully capable of doing. Pointing to
Figure 23 of Berg '416, the examiner contends that the connector
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