Appeal 2006-1953
Application 10/195,347
Appellants argue that “even though this new passage of Schwartz
mentions a naturally occurring extracellular matrix (e.g., SIS), nowhere in
Schwartz does it disclose the use of a shaped and dried naturally occurring
extracellular matrix, as required in Appellants’ independent claims 1, 69,
and 101” (Reply Br. 3).
We disagree with Appellants’ interpretation of the reference.
Schwartz discloses mixing SIS with a bio-absorbable material during
polymerization (Schwartz, col. 11, l.25) and forming a shaped insert/plug
from the mixed composition. In our view, it is reasonable to conclude that
the resulting device comprises shaped and dried SIS. Appellants have
provided no reason to conclude otherwise.
We therefore affirm the rejection of claim 1 as anticipated by
Schwartz. Claims 2, 7, 19-23, 33, 69-75, 77, 101, 102, 107, and 119-123 fall
with claim 1.
We also affirm the rejection of claims 42 and 65. Claim 42 is directed
to a device similar to that of claim 1, but also requires the plug to be seeded
with cells that can be, among other things, chondrocytes or stem cells.
Schwartz discloses that, in a preferred embodiment, the plug contains cell
factors that include chondrocytes and mesenchymal stem cells (Schwartz,
col. 11, ll 9-35). Schwartz also teaches that the repair factors can be
combined with the basic implant composition during polymerization or
added to an already formed basic implant composition (id. at col. 11, ll. 23-
26). We agree with the Examiner that Schwartz discloses the device defined
by claim 42, having chondrocytes or stem cells seeded on the plug.
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