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Appeal No. 2005-2621
Application No. 08/968,756
The examiner has rejected the claims under 35 U.S.C. § 103 as being
unpatentable of Horzewski in view of Jervis. We initially note that in rejecting claims
under 35 U.S.C. § 103, the examiner bears the initial burden of presenting a prima facie
case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956
(Fed. Cir. 1993). A prima facie case of obviousness is established by presenting
evidence that the reference teachings would appear to be sufficient for one of ordinary
skill in the relevant art having the references before him to make the proposed
combination or other modification. See In re Lintner, 9 F.2d 1013, 1016, 173 USPQ
560, 562 (CCPA 1972). Furthermore, the conclusion that the claimed subject matter is
prima facie obvious must be supported by evidence, as shown by some objective
teaching in the prior art or by knowledge generally available to one of ordinary skill in
the art that would have led that individual to combine the relevant teachings of the
references to arrive at the claimed invention. See In re Fine, 837 F.2d 1071, 1074, 5
USPQ2d 1596, 1598 (Fed. Cir. 1988).
The examiner is of the opinion that Horzewski describes the invention as claimed
except that Horzewski does not describe the intrinsic characteristics of the superelastic
shape memory alloy, such as that it exhibits a stress-induced martensite properties at
about a mammalian body temperature when the delivery element is in the first shape.
The examiner relies on Jervis for teaching a medical device made of a
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