Appeal No. 2002-2249
Application 09/340,441
treatment time for the 5 foot length exceeds the time limit of ten minutes in appealed claim 15
and thus the claimed invention encompassed by this claim is nonobvious, noting that the
different “zones” of the apparatus of Stewart “sequentially . . . [treat] sections of polymeric
tubing” (pages 13, 15 and 16). The examiner responds that a “duration of 10 minutes would
allow coating of an implantable device having dimensions of 32 inches” because Stewart shows
“that 3.2 inches of tubing are coated for 1 minute” (answer, pages 10-11; emphasis in original
deleted).
We find that Stewart teaches coating of the OD and/or ID surface of implantable tubing,
which contains a further bio-reactive agent applied over the coating. The method of Stewart
encompasses tubing advancing from reel 30 to and through a glass tube '69, that can be 6 to 18
inches in length, in the monomer deposition zone 66 of the apparatus shown in Stewart FIGs. 1
and 4, with continuous or pulsed application of power at between 0 watts and 300 watts over the
entire run of the length of tubing being treating (e.g., col. 3, line 9, to col. 4, line 42; col. 7, lines
38-67; col. 9, lines 25-34; and col. 11, lines 8-31). Stewart discloses no time period or other
conditions in which to treat an entire length of tubing in the apparatus and indeed, there is no
range of lengths of tubing disclosed for the method. In this respect, Stewart teaches that the
“method . . . is preferably performed continuously meaning that tubing is fed from a spool of
1000+ feet of tubing” (col. 5, lines 61-63), and states that “[i]n any given instance, it can be
readily determined empirically by varying discharge conditions and time of exposure to discharge
as to what treatment results are obtained and adjusting the conditions to obtain the desired result”
(col. 3, lines 35-38). In the Stewart Examples, “[c]onventional silicone tubing . . . was loaded in
an upper chamber, shown as 38, of an apparatus as shown in FIG. 1,” which chamber 38 holds
reel 30, that is, a “spool” of tubing (col. 15, lines 42-45), and “[t]he monomer deposition zone
was run . . . [as set forth in Table 2] for 20 minutes so that about 5 feet of tubing had monomer
deposited on the outer surface” (col. 16, lines 27-30). On this evidence, it appears that the five
foot length is only part of a run of tubing from a reel or spool of tubing. Thus, while it is
apparent that the process of Stewart can be performed with shorter lengths of tubing than 1000
feet, there is no evidence in the record that the method and apparatus of the reference would be
reasonably applied to a length as short as 5 feet, except for test purposes, and the adjustment with
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