Appeal 2007-2766
Application 09/880,615
cutting step to “cutting a plurality of openings in the tube to form a stent
having multiple serpentine bands such that a first band has a different
porosity than a second band.”
In making an obviousness determination over a combination of prior
art references, it is important to identify a reason why persons of ordinary
skill in the art would have attempted to make the claimed subject matter.
KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385,
1396 (2007). When making such a determination, the scope of the prior art
and level of ordinary skill must be considered. Graham v. John Deere Co.,
383 U.S. 1, 17 (1966).
Both Yan (FF 6-7) and Solovay describes the same basic
manufacturing steps (FF 15) which are claimed, i.e., of providing a tube and
cutting it. The issue in this rejection is whether the skilled worker would
have had sufficient reason to have supplied the patterned stent of Yan “with
at least two different longitudinally spaced regions of different
predetermined porosities wherein each region has substantially the same
porosity about its circumference, . . . in light of the teachings of Solovay”
(Answer 5). If so, the burden shifts to Appellant to come forward with
rebuttal arguments or evidence. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992); Hyatt v. Dudas, 492 F.3d 1365, 1370,
83 USPQ2d 1373, 1375-76 (Fed. Cir. 2007).
In the instant Specification, it is stated that “cellular ingrowth [into the
porous stents of the present invention] is sometimes desirable”
(Specification 4: 5). The Specification also states that pore size determines
whether cellular infiltration will occur and states that “pore size of the stent
may be varied to foster or inhibit cellular infiltration and/or tissue ingrowth”
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