Appeal 2007-1998
Application 09/997,829
modified by Choi et al. in order to provide a good bond so the
layers do not separate in the vessel. Using like materials
enhances the bond as opposed to the adhesive material used by
Myers using dissimilar material to bond the layers.
(id.)
While this may be true, Banas fails to teach or provide a reason to
incorporate a coating comprising therapeutic agent and a polymer onto the
stent and then 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.
Therefore, Banas fails to make up for the deficiencies in the combination of
Myers and Choi.
Accordingly, we find that the evidence of record is insufficient to
support a prima facie case of obviousness. Accordingly, we reverse the
rejection of claim 118 and 119 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Myers, Choi, and Banas.
OTHER ISSUES
We recognize the Examiner’s assertion that Appellant’s information
disclosure statements “include references showing that coatings with
therapeutic material on intraluminal devices are well known in the art”
(Office Communication, dated April 21, 2006). The Examiner appears to
assert that there may be other evidence on this record that may support a
prima facie case of obviousness. However, since this evidence was not
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