Appeal No. 2006-2037 Page 8
Application No. 10/414,938
As the examiner recognizes the first bioactive layer 18 extends from the
distal (e.g., first) end to the proximal (e.g., second) end of the tube. Answer,
page 8. Contrary to the examiner’s assertion, this is not what appellants’ have
claimed. Cf. Answer, page 9. As discussed above, appellants’ device comprises
three parts, which define separate sections located at different ends of the
device.4 In contrast, as the examiner recognizes Ragheb’s device defines
separate sections in terms of layers positioned on either side of the device’s base
material, which may run the full length of device. Therefore, it is our opinion that
Ragheb describes a different device than that set forth in appellants’ claims.
“Under 35 U.S.C. § 102, every limitation of a claim must identically appear
in a single prior art reference for it to anticipate the claim.” Gechter v. Davidson,
116 F.3d 1454, 1457, 43 USPQ2d 1030, 1032 (Fed. Cir. 1997). As discussed
above, Ragheb does not describe appellants’ invention. Accordingly, we reverse
the rejection of claims 1, 2, 15, 18, and 20-24 under 35 U.S.C. § 102(b) as
anticipated by Ragheb.
Pacetti:
Claims 1, 3-7, 10, 11, 15, 16, and 20-24 stand rejected under 35 U.S.C.
§ 102(e) as anticipated by Pacetti. The examiner directs attention to the Final
Rejection, mailed March 31, 2005, for a statement of the rejection.
4 See e.g., Brief, page 11. While the examiner asserts (Answer, page 8) that this spatial
relationship is not required for appellants’ claim 1, the examiner has not explained how the claim
can be constructed to avoid this spatial relationship of different sections at different ends of the
device. Accordingly, we are not persuaded by the examiner’s assertion.
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