Ex Parte Schwartz et al - Page 11

                Appeal  2006-1953                                                                             
                Application 10/195,347                                                                        

                      Claim 65 is directed to a device similar to that of claim 1 but requires                
                that the naturally occurring ECM is comminuted SIS and that the ECM is                        
                “cured to have a strength sufficient to withstand the compression and shear                   
                stress to which the articular cartilage is subjected.”  We agree with the                     
                Examiner that Schwartz discloses both of these limitations.                                   
                      Schwartz expressly discloses small intestine submucosa (Schwartz,                       
                col. 11, l. 35) in a group in which all the other members are types of cells.                 
                Schwartz also teaches that the SIS can be mixed with the basic implant                        
                composition during polymerization (Schwartz, col. 11, l. 25).  Thus, those                    
                skilled in the art would have understood Schwartz’s reference to SIS to                       
                mean comminuted SIS.  With regard to the curing limitation, Schwartz                          
                expressly teaches annealing the plug/insert to modify its hardness and                        
                longevity.  We agree with the Examiner that the plug/insert disclosed by                      
                Schwartz would inherently meet the strength limitation recited in claim 65.                   
                      Appellants argue that Schwartz does not teach a plug comprising a                       
                naturally occurring ECM seeded with the cells listed in claim 42 (Br. 28), or                 
                a plug comprising comminuted naturally occurring ECM (id. at 26).  For the                    
                reasons discussed above, we disagree.  We affirm the rejection of claims 42                   
                and 65 as anticipated by Schwartz.  Claims 43-45, 50, 53, and 54 fall with                    
                claim 42; claim 103 falls with claim 65.                                                      
                      Claim 24 is a different matter.  Claim 24 requires that both the                        
                plug/insert and the anchor of the cartilage repair device comprise naturally                  
                occurring ECM.  Appellants have argued that the “Examiner has not                             
                identified a teaching in Schwartz which discloses an anchor formed of                         
                naturally occurring extracellular matrix” (Br. 26).                                           


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