Appeal No. 2006-1603
Application No. 10/646,675
(referred to as the lumen or access tube) in a trocar and used in cutting or separating
tissue.
Therefore, the claim limitation of use in endoscopic surgery adds structural
narrowing to the claimed obturator in that the obturator must have a structure which is
capable of fitting in a trocar and of cutting or separating tissue.
With regard to the second claim construction issue, the claim explicitly requires
that the proximal end, distal ends and the shaft are formed as a monolithic structure.
While it is true that, as the examiner asserts, this means that the formation process
must be such as to make the obturator monolithic, this limitation affects the scope of the
resultant structure at least as much as the process that achieves that structure. That is,
the claimed “being formed as” implies being formed to result as, and so we conclude
the claimed obturator must structurally be monolithic.
Having resolved the claim construction issues, we now turn to the rejections.
Claims 18 and 8 stand rejected under 35 U.S.C. § 102(b), or, in the alternative,
under 35 U.S.C. § 103, as being unpatentable over Vidal.
As noted above, the limitation of “the proximal end and distal ends [sic] and the
shaft being formed as a monolithic structure” is a structural limitation. None of the
obturators taught by Vidal are monolithic, but instead are comprised of multiple parts.
This includes the prior art obturators that have a safety shield, because the safety shield
negates any otherwise monolithic character of the obturator.
Accordingly, we do not sustain the rejection of claims 18 and 8 under 35 U.S.C.
§ 102(b) as being unpatentable over Vidal.
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