Appeal No. 2005-0916
Application No. 09/785,374
Appellants group all the appealed claims together in one
group (see page 2 of principal brief). Accordingly, all the
appealed claims stand or fall together with claim 1.
We have thoroughly reviewed each of appellants' arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning of
§ 103 in view of the applied prior art. Accordingly, we will
sustain the examiner's rejection.
There is no dispute that Makower, like appellants, discloses
a surgical device comprising an actuating means which connects a
tissue engaging means and a handle assembly, wherein the
actuating means extends through a tube. Makower does not
expressly disclose that the material of the tube be malleable and
the configuration of the tube be such that it is kink resistant
and able to bend about some bending radius. However, as pointed
out by the examiner, Makower provides the teaching that "[t]he
tubular support 11 can be made out of any material appropriate
for the nature of its use and in particular a medical grade
plastics, metals or ceramics may be used, however, the choice of
material will undoubtedly be determined by the function of the
particular configuration" (column 7, lines 4-8). Also, the
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