Appeal 2007-1998
Application 09/997,829
Michal teaches a stent with coating comprising a base coat and a top
coat, wherein the top coat comprises a therapeutic agent (Michal, col. 2, ll.
13-14 and 28-29). In an alternative, Michal teaches the application of a
therapeutic coating directly to the stent (Michal, col. 5, ll. 42-44).
Nevertheless, in each instance Michal’s therapeutic coating is the outermost
layer. Neither the Examiner nor Michal provide a reason why a person of
ordinary skill in the art would add an additional layer, e.g., a tubular outer
layer comprising expanded, sintered PTFE tape, on top of the therapeutic
coating. Prima facie obviousness requires a teaching that all elements of the
claimed invention are found in the prior art and a reason that would have
prompted a person of ordinary skill in the relevant field to modify the prior
art to arrive at the claimed invention. See KSR, 127 S. Ct. at 1741, 82
USPQ2d at 1396. Accordingly, Michal fails to make up for the deficiency in
the combination of Myers and Choi.
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 claim 106 under 35 U.S.C § 103(a) as unpatentable
over the combination of Myers, Choi, and Michal.
3. Claims 108-111 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Myers, Choi, and Wijay. Claims 108-111 depend
directly or indirectly from claim 103.
The Examiner relies on the combination of Myers and Choi as set
forth above (Answer 6). The Examiner finds that the combination of Myers
and Choi fail to teach a non-foreshortening stent (id.). The Examiner relies
on Wijay to teach stents “having a plurality of undulating elements with at
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