Appeal 2007-0811
Application 10/128,997
Id. at 1740, 82 USPQ2d at 1396. The operative question in this “functional
approach” is thus “whether the improvement is more than the predictable use
of prior art elements according to their established functions.” Id.
ANALYSIS
Our findings with regards to the scope and content of the prior art are
outlined above. Warman differs from the claimed subject matter in possibly
not showing a flexible tapered portion extending from the preformed biased
portion to the distal end of the lead. Hine discloses such a flexible tapered
portion. We agree with the Examiner that it would have been obvious at the
time Appellants’ invention was made to taper and render flexible, the distal
portion of Warman’s lead body if, indeed, Warman’s body is not tapered and
flexible. Hine teaches one of ordinary skill to do so to improve the
maneuverability in the cardiac vein. This is the simple substitution of one
known element for another to obtain predictable results.
Appellants argue that the combination of Warman and Hine does not
include every element of the claim and that there is no suggestion or
motivation to combine these references. We certainly disagree. As we have
outlined in our findings, each and every element of the claim is found in
Warman with the possible exception of the tapered tip. Appellants further
argue that Warman teaches away in that Warman discloses a thin lead body
whereas Hine creates maneuverability by tapering only the end of the body.
In our view, the teaching of Hine is clear. Whatever the diameter of the
lead, when maneuvering in the tortuous cardiac vein, it is ideal to provide a
molded, tapered nose to improve maneuverability and to prevent damage to
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