Ex Parte Lyren - Page 13

                Appeal 2006-2283                                                                               
                Application 10/375,343                                                                         

                7, and 16.  Other issues are whether Kawahara’s laminated body satisfies the                   
                recitation “wherein the entire bone fixation body is porous” in dependent                      
                claim 2 (Br. 14), is “entirely porous from the proximal to distal ends,” as                    
                recited in dependent claim 15 (Br. 14-15), and “has a cross section formed                     
                entirely of the porous structure,” as recited in dependent claim 17 (Br. 15).                  
                      In order to resolve the first issue, we must first determine how the                     
                term “uniform” is used in Appellant’s claims 1, 7, and 16.  Appellant’s                        
                argument appears to be grounded on the position that the language                              
                “completely uniform porous structure” requires that the porosity and pore                      
                size of the body fixation body is the same throughout the body.  Appellant’s                   
                Specification, however, does not support such an interpretation.  The term                     
                “uniform” is not used in Appellant’s Specification, outside of claims 1, 7,                    
                and 16 as now presented.  Moreover, the term “uniform” was not in                              
                Appellant’s claims as originally filed.  With respect to porosity and pore                     
                size, Appellant describes the size and shape of the porous structure as                        
                emulating the size and shape of the porous structure of natural bone and                       
                discusses an “average” pore diameter of about 40 µm to about 800 µm with                       
                a porosity from about 45% to 65% (Specification 5).  There is nothing in this                  
                description that would convey to one of ordinary skill in the art that the                     
                porosity and pore size are the same throughout the entire body.  In fact, the                  
                use of the term “average” implies that the pores in the body vary in size.                     
                Consistent with Appellant’s disclosure, we interpret “completely uniform                       
                porous structure” to require merely that the entire structure be porous, that                  
                is, all parts of the body are porous, not that the porosity or pore size of the                
                body be identical throughout the body.  In other words, the term “uniform”                     


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