Appeal No. 2006-1603
Application No. 10/646,675
Claims 18 and 9 stand rejected under 35 U.S.C. § 103, as being unpatentable over
Johnson in view of Metcalf
The appellant argues that Johnson does not show an obturator for use in
endoscopic surgery. As we discussed in claim construction above, to be for use in
endoscopic surgery, an obturator must be capable of being placed in a bore (referred to
as the lumen or access tube) in a trocar and of cutting or separating tissue. We note
that dental obturator is structurally similar to an endoscopic obturator, differing primarily
in size. Obturators used in endoscopic surgery and in dentistry as portrayed in Metcalf
and Johnson have the same structural characteristics as in the appellant’s claims, i.e.
they have proximal ends designed for grasping and distal ends with a tip, and with a
shaft connecting the two ends and an enlarged circumference at the grasping end that
provides orientation information relative to the tip, at least in three dimensional space.
Both references have at least one embodiment in which the tip is blunt [compare
Johnson fig. 1 and Metcalf col. 3 lines 64-67].
Associated with this argument of use in endoscopic surgery, the appellant argues
[See Brief p. 12; Reply Brief, p. 6] that the tip of a dental obturator is not used to cut or
separate tissue because it is covered with a filler material and designed to be inserted in
a pre-drilled canal in a tooth. The examiner argues (Answer p. 11) that such an
insertion is a cutting or separation of tooth tissue by virtue of such an insertion into such
tissue. Johnson’s blunt tip is capable of separating tissue as taught in the background
as filling and entombing, thus separating, the pulpal material (tissue) remaining in the
tooth. [See col. 1 lines 39-48]
8
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