Appeal 2007-2766
Application 09/880,615
from such a teaching; one would never predetermine to produce
the very thing that is undesirable (i.e. non-uniform porosity).
(Appeal Br. 6.)
We do not agree. Yan states that consistent pore size and consistent
distribution of pores ensures even distribution of drug within the stent and
even distribution of drug in contact with the stent (Yan, at col. 4, ll. 54-65).
Thus, the teaching of Yan cited by Appellants deals with the issue of drug
delivery, and not the separate problem of tissue ingrowth addressed by
Solovay. However, claims 23 and 32 do not recite that drug is present in the
stent; thus, even were this consideration relevant, it would only be relevant
to the extent that the stent in the claimed method loaded with drug.
Nevertheless, we are not convinced by Appellant’s argument because
Solovay also teaches that that its stent of non-uniform porosity may be
loaded with drug (FF 14). Thus, we do not find that persons of skilled in the
art would have been discouraged from applying Solovay’s teaching to Yan’s
stent since Solovay also teaches loading the stent pores with drug.
Appellant contends that the Examiner erred because of his repeated
assertions that “that Yan discloses providing a tube having at least two
different longitudinally spaced regions of different predetermined physical
characteristics” which is inconsistent with Yan’s teaching that the stent must
have uniform porosity (Appeal Br. 5-6).
The Examiner’s characterization of Yan is correct. Yan shows an
embodiment of a stent in Fig. 12 having a core layer of large diameter pores
surrounded by a top and bottom layers of smaller diameter pores (FF 8).
Thus, there are different porosities at different regions along the length of
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