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Appeal No. 2005-2621
Application No. 08/968,756
superelastic alloy does not contain aperatures, this is not relevant to the rationale of the
examiner because the examiner considers 102 to be the delivery device and 150 to be
the housing and does not consider 122 to be the delivery device and 102 the housing.
The appellant also argues that there is no suggestion to combine the teachings
of Horzewski with the teachings of Jervis. In appellant's view, as Horzewski does not
teach a delivery device made of superelastic alloy that deforms under stress, there
would be no motivation to substitute the superelastic alloy of Jervis in the formation of
the delivery device of Horzewski. As we have found above that Horzewski does indeed
describe a delivery element in the form of catheter 102 that deforms under stress, we do
not find this argument persuasive.
In addition, Jervis teaches that the process of isothermally deforming a the
catheter eliminates the need for temperature control (col. 9, lines 39 to 42) thereby
providing ample motivation to use the Jervis material in the Horzewski device.
Appellant also argues that as Horzewski teaches that the housing 150 may be
eliminated, it teaches away from the use of a housing.
Horzewski does disclose that, if desired, the housing may be eliminated so that
the catheter itself can be guided through the vasculature (col 11, lines 55 to 58).
As to the specific question of "teaching away," our reviewing court in In re Gurley,
27 F.3d 551, 553, 31 USPQ2d 1130, 1331 (Fed. Cir. 1994) stated:
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