Appeal No. 2005-0929
Application No. 09/852,519
L’Esperance that said “energy absorbing compounds” cause an outwardly exposed
surface of the devices set forth in Figures 9-15 to contrast with the surrounding tissue
and enable the plug to be more easily visualized. Rather, we find that L’Esperance only
discloses that said compounds will shrink when exposed to different irradiating
wavelengths.
Accordingly, since L’Esperance does not disclose each and every element
recited in claims 1-4 and 6, Rejection 1 is reversed.
II. Obviousness
The examiner argues that Seder and Freeman each disclose flexible, punctual
plugs having an outwardly exposed surface. Answer, p. 4. The examiner
acknowledges that the plugs disclosed by Seder and Freeman do not contain a
substance which causes them to be more easily visualized (id., p. 5); however, he
contends that the teachings of Gwon make up for this deficiency. To that end, the
examiner argues that Gwon “explicitly teaches that a tracer may be incorporated into
the insert [ophthalmic device] by physical admixture or dissolution into the implant
matrix . . . [and the] . . . tracer is able to illuminate with light at its own illumination
wavelength.” Id. The examiner contends that “using a tracer in the matrix of an
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