Appeal 2006-3319
Application 10/366,585
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,
1734, 82 USPQ2d 1385, 1391 (2007). The question of obviousness is
resolved on the basis of underlying factual determinations including (1) the
scope and content of the prior art, (2) any differences between the claimed
subject matter and the prior art, (3) the level of ordinary skill in the art, and
(4) where in evidence, so-called secondary considerations. Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966). See also KSR,
127 S.Ct. at 1734, 82 USPQ2d at 1391 ("While the sequence of these
questions might be reordered in any particular case, the [Graham] factors
continue to define the inquiry that controls.")
Cohn, as discussed above, discloses a method for implanting a mitral
valve cinching device that differs from the methods recited in claims 15 and
16 only in that Cohn does not disclose a step of assessing arterial perfusion
of the heart including the step of detecting for myocardial ischemia or a
chemical marker of ischemia. Bardy discloses a method and system for
diagnosing and monitoring for myocardial ischemia by, for example,
detecting chemical markers of ischemia.
The level of ordinary skill in the art in this case is high. A person of
ordinary skill in the art is a cardiac surgeon, who is familiar with the risks
and complications involved with any cardiac procedure and with the
techniques for monitoring for such risks.
"A person of ordinary skill is also a person of ordinary creativity, not
an automaton." KSR Int’l. Co. v. Teleflex Inc., 127 S.Ct. at 1742, 82
USPQ2d at 1397.
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