Appeal No. 2006-2879
Application No. 09/954,789
the claimed subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d
781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires
that the prior art both suggest the claimed subject matter and reveal a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze
the prior art applied by the examiner in the rejection of the claims on appeal.
According to the examiner (Answer, pages 4-5)
The instant claims are directed to kits comprising a fluid composition that
forms a coherent mass in the presence of blood comprising a biocompati-
ble solvent and a biocompatible polymer, a catheter suitable for delivering
the fluid composition, a catheter suitable for delivering an endovascular
prosthesis to the aneurysm, and an endovascular prosthesis comprising a
stent-graft. McCrory teaches occlusive systems including a stent for
deployment in the parent vessel, a catheter for insertion of the device, a
liquid polymeric embolizing composition to seal aneurysm sac and a
microcatheter to deliver the embolizing composition (see abstract, col 3,
lines 60-col 4, lines 24; col 5, lines 25-58; col 6, lines 15-60 and figures
6A-B; col 8, line 50-col 9, line 20; col 12, lines 13-25). The stent of
McCrory is an endovascular prosthesis. The composition of McCrory
meets the element (a) of the instant claims because a liquid embolizing
compositions comprises a biocompatible polymer and solvent. McCrory
does not teach stent-grafts.
To make up for the deficiencies of McCrory, the examiner relies on Chuter
and May. According to the examiner, these references "collectively teach that
stent-grafts and stents are interchangeably used in the art to treat vascular
aneurysms." Answer, page 5. Additionally, Evans is relied on to show
"assembling a kit for vascular repair procedure[s] comprising an embolic
polymeric composition, which solidifies in vivo." Id.
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