Appeal 2007-2557
Application 10/094,866
citation omitted. Having failed to address the specific limitations of this
claim, it cannot be said that the Examiner met his burden of establishing that
claim 4 is prima facie case obviousness over the combination of Ley and
Hojeibane or Ley and Dinh. If the Examiner fails to establish a prima facie
case, the rejection is improper and will be overturned. Fine, at 1074, 5
USPQ2d at 1598. Accordingly, I would reverse the rejection of claim 4
under 35 U.S.C. § 103(a) over the combination of Ley and Hojeibane or Ley
and Dinh.
Claim 7:
Claim 7 depends from and further limits the continuous strand of
material set forth in claim 4 to be configured to also comprise a repeating
series of interconnected repeating W-shaped strand configurations having a
repeating dip, rise, dip, rise, loop, dip, rise, dip, rise, loop patterned
configuration. While claim 7 permits the continuous strand to include both
S- and W-shaped strand configurations, the use of the term “including” or
“comprising” does not permit alterations (e.g., additional twists and turns, et
cetera) within the defined S- and W-shaped configurations. Nevertheless,
having failed to identify any disclosure in the evidence relied upon to teach a
stent comprising an S-shaped configuration, the Examiner failed to establish
a factual basis to support the rejection. Accordingly, I would reverse the
rejection of claim 7 under 35 U.S.C. § 103(a) over the combination of Ley
and Hojeibane or Ley and Dinh.
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