Appeal No. 2003-1337
Serial No. 08/480,411
For the examiner’s argument to be correct the inflatable
portion of Brooks’ catheter, which has relatively fewer picks per
inch (col. 2, lines 60-66), would have to be at the proximal end.
Brooks, however, discloses (col. 1, lines 11-17): “This invention
relates to dilation catheters. Such catheters ... comprise a
catheter shaft with an inflatable balloon located near the
leading end of the catheter when it is inserted into the body of
the patient. This end is commonly known as the distal end.”3
Accordingly, we conclude that the examiner has not carried
the burden of establishing a prima facie case of anticipation of
the microtube claimed in the appellants’ claim 33 over Brooks.
Rejection of claims 1, 3, 27, 28 and 32
under 35 U.S.C. § 102(b) over Waddell
The appellants state that claim 28 stands or falls with
claim 27 (brief, page 7).4 We therefore address claim 27 and,
with respect to the reversed rejections, the independent claims,
i.e., claims 1 and 32.5
3 Brooks has relatively fewer picks at the distal end to
improve inflatability (col. 2, lines 60-66), whereas the
appellants have relatively more picks per inch at the distal end
to improve flexibility (specification, page 19, lines 1-5).
4 Citations herein to the brief are to the fifth brief
(filed February 7, 2002, paper no. 37).
5 See In re Ochiai, 71 F.3d 1565, 1566 n.2, 37 USPQ2d 1127,
1129 n.2 (Fed. Cir. 1995); 37 CFR § 1.192(c)(7)(1997).
5
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