Appeal No. 2005-0929
Application No. 09/852,519
Here, we find that the examiner has been a bit creative in order to reach his
finding that L’Esperance anticipates the claimed invention. That is, the examiner first
points to Figure 1 as depicting a plug with an outer surface, and to element 17, in
particular, as meeting the limitation of an “outwardly exposed surface.” We find that
L’Esperance (col. 3, lines 9-16) describes element 17 as a “flange”; however, we point
out that it does not constitute an “outwardly exposed surface” as required by the claims.
To the contrary, element 17 is located on the interior portion of the plug and is exposed
to the anterior chamber of the eye. See Figure 1 and col. 2, lines 55-60. Be that as it
may, the creative portion of the examiner’s rejection is the combination of the device set
forth in Figure 1 with the devices in the figures which L’Esperance describes as
containing energy-absorbing compounds; viz., Figures 9-16. The devices in the latter
figures differ structurally from the device shown in Figure 1. Rather than having the
outward exposed surface (element 18 in Figure 1), the latter devices comprise elements
41-42 and 51-52, which are present in a ring surrounding a tube (element 31). Said
elements comprise chromophores which are responsive to irradiating wavelengths.
L’Esperance, e.g., col. 5, lines 5-49 and col. 6, line 65-col. 7, line 32. Thus, we find that
the structures which comprise the energy-absorbing compounds (dyes or
chromophores) do not resemble the structure set forth in Figure 1 of the patent. More
importantly, we do not find, and the examiner has not pointed out, a disclosure in
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