Appeal 2006-0959
Application 10/075,914
(Answer, p. 7; Ragheb, col. 1, ll. 18-37).
In the reply brief, Appellant further argues that “the appealed claims
require that the metallic component of the stent be insufficient to maintain
patency of the lumen ‘upon implantation,’ not after the passage of time.”
(Reply Brief, p. 4). We do not agree that “upon implantation” as it is used in
the claim suffices to distinguish the claimed stent from the stent of Ragheb.
The phrase can be read, in the context of the clause as a whole, as indicating
patency is maintained once the stent is implanted, the phrase does not
require prevention of immediate blockage. The combined phrase,
“maintaining patency upon implantation” may mean both keeping the lumen
open by mechanical structure of a stent immediately after the implantation,
or by preventing restenosis over time. Furthermore, Ragheb describes
preventing abrupt closure due to thrombosis which through the use of the
polymeric coating layers also meets the claim limitation (Rageheb, col. 1, l.
62 to col. 2, l. 8 and col. 5, ll. 52-59).
Even if we were to accept Appellant’s narrow interpretation of
“insufficient … of maintaining patency. . . upon implantation” as limited to
immediate mechanical collapse, we agree with the Examiner that the claim
is not particularly limited in terms of stent structure in a way that differs
from the prior art. As cogently articulated in the Answer, “[t]here are no
specific amounts, ratios, or dimensions provided for any of the stent
materials that distinguish the claimed invention from prior art stents.” Stent
and lumen sizes vary as do the forces on the stents at the particular locations
in the body. As stated in Ragheb, “[s]tructures such as stents or catheter
portions intended to be used [at sites other than coronary arteries] such as in
the aorta, esophagus, trachea, colon, biliary tract, or urinary tract will have
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