Appeal 2007-2026
Application 10/131,772
The Examiner reasons that “[b]y using a tapered balloon to deliver the
stent of Fischell, the cell structures will be disposed at an oblique angle
relative to the longitudinal axis. The cell structures will converge
longitudinally toward the distal (or proximal) end of the stent, as well as
converge radially inward toward the longitudinal axis” (id.). The Examiner
concludes that one of ordinary skill would have considered it obvious to
deliver the stent of Fischell ‘516 using Savin’s tapered balloon since “Savin
states that . . . using a tapered balloon to deliver a stent provides numerous
advantages because it can be used in various areas of the body and can also
fulfill several functions (i.e. a stent or a filter)” (id.).
Appellants argue that the references teach away from their
combination “because the stent delivery system of Savin uses a stent that
maintains or decreases its length upon expansion whereas the stent of
Fischell [‘516] increases its length upon expansion” (Br. 9). Appellants
argue that the deployment method of Savin, in which retaining sleeves are
pulled away from the ends of the stent as it is expanded by an inflating
balloon, demonstrates the desirability of using a stent that maintains or
decreases its length, rather than a stent that increases in length, like the one
disclosed in Fischell ‘516 (id. at 9-10; Reply Br. 4-6).
We are not persuaded by this argument. Recently addressing the issue
of obviousness, the United States Supreme Court noted that the analysis
under 35 U.S.C. § 103 “need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
of the inferences and creative steps that a person of ordinary skill in the art
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