Appeal 2006-3116
Application 10/809,140
claimed invention was made. Accordingly, since a prima facie case of
obviousness has been established by the Examiner, we again evaluate all of
the evidence of obviousness and nonobviousness based on the record as a
whole, giving due consideration to the weight of Appellants’ arguments in
the Brief. See generally, In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472,
223 USPQ 785, 788 (Fed. Cir. 1984).
We agree with the Examiner’s findings of fact from the references,
conclusions of law based on this substantial evidence and response to
Appellants’ arguments as set forth in the Answer (Answer 3-8, to which we
add the following for emphasis.
Appellants submit that Sawhney “teaches away from premature
formation of the hydrogel, meaning formation of the hydrogel before it is at
the body cavity,” pointing to the disclosure at col. 3, l. 7 et seq., and argues
that Sawhney makes clear the delivery of “‘two or more fluent prepolymer
solutions without premature crosslinking’” so as “‘to form a hydrogel
implant in situ’” in the abstract and at col. 1, ll. 8-10 (Br. 3, original
emphasis deleted). In this respect, Appellants further point to the Sawhney
illustrative FIG. 3 as described at col. 10, ll. 1-25, noting that the illustrated
“delivery system 40” is there disclosed to additionally enable the prepolymer
solutions to “be mixed and partially gelled before being deposited in the
body lumen or void” (Br. 3, original emphasis deleted; Sawhney col. 10, ll.
15-16). Appellants argue that the Examiner’s position that the “partially
gelled” solution forms a “string-like” material is unsupported, contending
that the delivery device of Sawhney can provide “[a] glob of partially
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