Appeal No. 2005-0916
Application No. 09/785,374
appellants have not argued that they were the first to ascertain
the problem of the tube not being kink resistant and bendable, we
are persuaded that the recognition of the problem during surgery,
as well as its solution, would have been readily apparent to one
of ordinary skill in the art. In re Ludwig, 353 F.2d 241, 243-
44, 147 USPQ 420, 421 (CCPA 1965).
Also, as alluded to by the examiner, claim 1 on appeal is of
considerable breadth with respect to the tube properties of
malleability, kink resistance and bendability. The claim fails
to recite any degree of malleability, kink resistance or
bendability. As such, it is impossible to determine to what
degree, if any, the claimed tube differs from the metal and
plastic tubes of Makower with respect to these properties.
As a final point, we note that appellants base no argument
upon objective evidence of nonobviousness, such as unexpected
results, which would serve to rebut the inference of obviousness
established by the prior art.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
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