Appeal 2006-3116
Application 10/809,140
“[t]he partial gel extruded from the mixing chamber 46 through outlet ports
47 [of delivery system 40] then may have sufficient mechanical integrity to
remain in position in the body lumen or void during the chemical
crosslinking process,” which would not have described any particular shape
to one of ordinary skill in the art (col. 10, ll. 20-24 and FIG. 3). Thus, we
determine that one of ordinary skill in this art routinely following the
teachings of Sawhney would have reasonably arrived at the claimed method
using the prepolymer and initiator of the reference in the delivery system 40
thereof as this person can determine the extent to which the hydrogel is
crosslinked prior to extrusion to obtain the desired form under the
circumstances in which the method is used. We find that Tanabe would
have taught that the extrusion of a material which hardens on delivery from
the same type of delivery device disclosed by Sawhney would assume the
shape of the inside diameter of the outlet lumen (Tanabe col. 8, ll. 40-65, and
FIG. 3).
Thus, the record contains substantial evidence supporting the position
that the claimed method encompassed by appealed claim 1, as we have
considered the limitations thereof, reasonably appears to be identical or
substantially identical to the method of the combined teachings of Sawhney
and Tanabe, even though Sawhney does not describe the partially gelled
material extruded from the delivery device as being in the form of a
hydrogel string. Thus the burden shifts to Appellants to submit effective
argument and/or evidence to patentably distinguish the claimed method over
the teachings of the references even though the ground of rejection is under
§ 103(a). See, e.g., In re Best, 562 F.2d 1252, 1255-56, 195 USPQ 430, 433-
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