Appeal 2007-1998
Application 09/997,829
modify the prior art to arrive at the claimed invention. See KSR, 127 S. Ct.
at 1741, 82 USPQ2d at 1396.
On reflection, we find that the evidence of record is insufficient to
support a prima facie case of obviousness. Accordingly, we reverse the
rejection of claims 103-105, 107, and 113-117 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Myer and Choi.
Claim 106 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Myer, Choi and Michal. Claims 106 depends from
and further limits therapeutic substance on the device of claim 103 to
paclitaxel or an analog thereof. The Examiner relies on the combination of
Myers and Choi as discussed above (Answer 6). The Examiner recognizes,
however, that the combination of Myers and Choi fails to teach the use of
paclitaxel on a stent (id.). To make up for this deficiency the Examiner
relies on Michal to teach a stent coated with paclitaxel. Based on this
evidence the Examiner finds that “[i]t would have been obvious to one of
ordinary skill in the art to use the drug paclitaxel as taught by Michal . . . in
the stent of Myers . . . as modified by Choi . . . in order to reduce restenosis”
(id.).
For the reasons set forth above, we find that the combination of Myers
and Choi is insufficient to establish a prima facie case of obviousness.
Michal brings the Examiner a step closer to a prima facie case of
obviousness by teaching drug coated stents. The combination of Myers,
Choi and Michal, however, fails to teach one of ordinary skill in the art to
coat a stent with a polymer and a therapeutic substance and then place a
tubular outer layer comprising PTFE tape.
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