Appeal No. 2006-2879
Application No. 09/954,789
The examiner concludes it would have been obvious to add a stent-graft
taught by Chuter and May to McCrory's system and assemble a kit to facilitate
convenience during a vascular repair procedure as taught by Evans. The
examiner additionally relies on In re Kerkhoven, 205 USPQ 1069 (CCPA 1980),
for the legal proposition that it would have been obvious to combine two
compositions each of which is taught by the prior art to be useful for the same
purpose in order to form a third composition for the same purpose. Answer,
page 5.
Appellants argue, however, that neither Chuter nor May constitute prior art
against the claimed invention. Brief, page 5. Appellants argue that they are
entitled to the filing date of March 19, 1999, which is prior to the 2000 publication
dates of Chuter and May. Further, appellants argue that Example 2 of the priority
application (09/273,120 ('120), now U.S. Patent No. 6,203,779 B1 ('779))
describes the use of a Wallgraft™, which is a stent-graft, evidencing support for
stent-grafts in the priority application. The examiner counters that the March 19,
1999 filing date does not envision the use of stent-grafts in their kits. We
disagree.
Upon review of the disclosure of the '120 application as reproduced in the
'779 patent, we agree with appellants that the priority application describes stent-
grafts. In our view, example 2 of the '120 application describes the use of a
stent-graft, i.e., Wallgraft™. Declaration evidence of record, Declaration of
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