Appeal 2007-2496
Application 10/096,299
According to the Examiner, “Daskalakis teaches a method of
increasing the cardiac output of an enlarged heart comprising providing a
surgical access site to a chamber of the heart; permanently displacing a
portion of the volume within the chamber by inserting and inflating an
expandable member including 19", [and] closing the access site.” (Answer2
3).
Appellants argue with respect to claim 61 (with which claim 62 stands
or falls, as Appellants did not provide separate arguments as to claim 62, see
37 C.F.R. § 41.37(c)(1)(vii) (2006)), that “Daskalakis does not disclose (or
inherently possess) a preshaped expandable member having a shape which,
when installed and inflated in the ventricular chamber, together with the
ventricular chamber, more closely approximates the ventricular geometry of
a healthy heart.” (Appeal Br.3 6). According the Appellants, the inflatable
balloon of Deskalakis is fluidly connected to a pump, such that the balloon is
inflated during each ventricular contraction, and thus must also perform a
deflation of the balloon during successive inflation steps (id. at 5).
Deskalakis, Appellants assert, clearly show that when the balloon is in its
inflated state, it extends into the ventricle to form a convex outer surface, in
contrast to the concave natural inner walls of the ventricle (id. at 6).
In order for a prior art reference to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. See In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429,
1431 (Fed. Cir. 1997). As to claim 61, Deskalkis teaches a method of
2 All references to the Answer are to the Examiner’s Answer dated
December 18, 2006.
3 All references to the Appeal Brief (Appeal Br.) are to the Appeal Brief
dated September 28, 2006.
3
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