Appeal No. 2003-2036 Page 7
Application No. 09/961,198
have been obvious to one skilled in the art at the time the invention was made to
construct the instrument of Torrie with the slit having a wider opening at a proximal end
in view of DiPoto in order to facilitate and ensure that the arms of the body are
sufficiently flexible to expand radially.
The appellants argue (brief, pp. 4-5) that the applied prior art does not suggest
the claimed subject matter. We agree. All the claims under appeal require the
instrument for applying a surgical fastener to include a slit through an elongated body
wherein the proximal end of the slit opens into an aperture wider than the slit to reduce
stress on the body at the slit proximal end. However, these limitations are not
suggested by the applied prior art. In that regard, while DiPoto does teach an
expandable suture anchor (i.e., a surgical fastener) having an outer member in which a
slit extends through its body wherein the distal end of the slit opens into an aperture
wider than the slit, DiPoto does not teach or suggest providing an instrument for
applying a surgical fastener to include a slit through an elongated body wherein the
proximal end of the slit opens into an aperture wider than the slit to reduce stress on the
body at the slit proximal end.
In our view, the only suggestion for modifying Torrie in the manner proposed by
the examiner to meet the above-noted limitations stems from hindsight knowledge
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