Appeal No. 2003-1568 Page 9
Application No. 09/516,603
distally with respect to the frame) wherein the actuating mechanism and the at least
one of said jaws being axially movable to move the jaws between the open and
approximated positions is not disclosed in Green. In that regard, we note that Green's
endoscopic portion 512 is not able to be read on the claimed actuating mechanism
since the endoscopic portion 512 to which lower jaw 516 is fixed and the upper jaw 516
is hinged must be read to be part of one of the claimed jaws so that the limitation that
the first and second jaws are mounted to each other can be meet. It is improper to read
Green's endoscopic portion 512 as both a part of one of the claimed jaws and the
claimed actuating mechanism.
Since all the limitations of independent claims 1, 25, 26, 27, 31 and 34 are not
disclosed by Green for the reasons set forth above, the decision of the examiner to
reject claims 1, 25, 26, 27, 31 and 34, and claims 8, 17 and 28 to 32 dependent
thereon, under 35 U.S.C. § 102(b) is reversed.
The obviousness rejection
We will not sustain the rejection of dependent claims 9 and 16 under 35 U.S.C.
§ 103 since the examiner has not established that the subject matter of parent claim 1
would have been obvious at the time the invention was made to a person of ordinary
skill in the art.
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