Appeal 2007-2026
Application 10/131,772
would employ.” KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d
1385, 1396 (2007).
Moreover, it is well settled that, “in a section 103 inquiry, ‘the fact
that a specific [embodiment] is taught to be preferred is not controlling,
since all disclosures of the prior art, including unpreferred embodiments,
must be considered.’” Merck & Co. v. Biocraft Laboratories Inc., 874 F.2d
804, 807, 10 USPQ2d 1843, 1846 (Fed. Cir. 1989) (quoting In re Lamberti,
545 F.2d 747, 750, 192 USPQ 278, 280 (CCPA 1976).) Thus, “[a]ll the
disclosures in a reference must be evaluated, including nonpreferred
embodiments, and a reference is not limited to the disclosure of specific
working examples.” In re Mills, 470 F.2d 649, 651, 176 USPQ 196, 198
(CCPA 1972) (citations omitted).
We note that Savin discloses that “[i]n preferred embodiments . . . the
stent is formed of knitted material and the length of the stent does not
significantly change when the stent is expanded . . .” (Savin, col. 2, ll. 20-
27). Rather than limiting its disclosure to stents that lengthen on
deployment, however, Fischell ‘516 actually states that “[a]t the nominal
fully-deployed diameter, the deployed stent is exactly the same length as the
non-deployed length. This characteristic provides better assurance of
completely covering a dilated stenosis as compared to a stent that shortens in
length when deployed . . .” (Fischell ‘516, col. 1, ll. 30-35, emphasis added).
Therefore, rather than teaching away from using the stents of Fischell
‘516, Savin’s preference for non-lengthening stents suggests that the tapered
balloon deployment method would be useful with the non-lengthening stent
embodiments of Fischell ‘516.
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