Appeal 2007-2018
Application 09/810,377
including an outer layer containing 10-30% by weight radiopaque bismuth
(Parker, col. 2, ll. 31-40), which results in a shaft containing less radiopaque
material than the distal tip. Even if the radiopaque material was surrounded
by pure FEP as described in Coneys, Appellants have not provided any
evidence that the difference in the amounts of radiopaque material described
in Parker would not provide a shaft that is distinctly less radiopaque than the
distal tip.
Appellants also argue that claims 2 and 20 require that the distal tip
contain between 50 and 55 weight percent radiopaque material, “which is
even further removed from the teachings of Coneys” (Br. 8; see also Br. 10).
We are not persuaded by this argument.
Although Coneys does not describe a distal tip section containing
between about 50-55% by weight radiopaque material, Coneys does teach
that FEP can be loaded with 70-80% radiopaque material. In addition,
Parker describes a distal tip containing 35-65% by weight radiopaque
material. “[W]here there is a range disclosed in the prior art, and the
claimed invention falls within that range, there is a presumption of
obviousness.” Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317,
1322, 73 USPQ2d 1225, 1228 (Fed. Cir. 2004). Based on the teachings of
the prior art, we conclude that it would have been obvious to include 50-
55% by weight radiopaque material in FEP.
With regard to claim 17, Appellants argue that “it cannot be fairly said
that Coneys teaches or suggests a distal tip of an introducer sheath that
consists essentially of highly loaded FEP, since the composite ‘tip’ in
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