Appeal 2007-2026
Application 10/131,772
Appellants argue that “the allegedly I shaped bonate cell in Fischell
[‘971] consists of two triangles connected by a plus sign (+). This shape is
more similar to a bow-tie shape than an I shape” (Reply Br. 7). Appellants
argue that a comparison of Figure 2 of Fischell ‘971 with Figure 23 of the
instant Specification supports this argument (id.).
We do not find this argument persuasive. As discussed above, we
agree with the Examiner that the term “I shaped” can reasonably be
interpreted to encompass any structure that is generally shaped like an “I.”
It is true that the cells of the Fischell ‘971 stent can be characterized as
having a shape somewhat like a bow tie. However, because the cells have
two wider end portions which extend from both sides of a narrower
connecting portion that extends along a central axis we agree with the
Examiner that the cells are also generally shaped like an “I.”
Moreover, “[a]bsent claim language carrying a narrow meaning, the
PTO should only limit the claim based on the specification or prosecution
history when those sources expressly disclaim the broader definition.” In re
Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1211 (Fed Cir. 2004). Claim
33 does not contain any limitations on the structure of the I-shaped cells,
beyond the requirement that the cells be generally shaped like an “I.” The
Examiner therefore correctly interpreted claim 33 to encompass the Fischell
‘971 stent, rather than limiting claim 33 only to structures that closely
resemble the cells shown in Appellants’ Figure 23.
Appellants argue that neither Fischell ‘971 nor Savin discloses using
their stents at tapered or narrowing vessels and “there is no reasonable
expectation of success that the Fischell [‘971] stent can be used at a taper”
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