Appeal 2007-0532
Application 10/828,316
position that “the molecular weight of the instant application is within the
matrix molecular weight used by [Sander] and Boyce” (Answer 12).
The references also do not expressly disclose the pH range recited in
the claims, nor does Boyce characterize the viscosity of the slurry or paste
composition at 22° C and 37° C. Again, however, Appellants do not argue
that either of these limitations distinguishes the claimed composition from
the one suggested by the cited references.
We also agree that the cited references would have suggested the
composition of claim 26, which adds to claim 23 the limitation that the bone
particles have a size range of 100 to 850 microns (i.e., 0.1 to 0.85 mm) and a
concentration of 20-35% of the composition. Boyce teaches a composition
having 5-100% bone particles and therefore teaches a concentration range
that overlaps the one recited in claim 26. With respect to the particle size
range, Boyce teaches that the “powdered bone particles can range in average
particle size from about 0.05 to about 1.2 cm” (col. 4, ll. 56-58), i.e., 0.5 to
12 mm. Thus, the range of particle sizes taught by Boyce also overlaps the
size range recited in claim 26. “[W]here there is a range disclosed in the
prior art, and the claimed invention falls within that range, there is a
presumption of obviousness.” Iron Grip Barbell Co., Inc. v. USA Sports,
Inc., 392 F.3d 1317, 1322, 73 USPQ2d 1225, 1228 (Fed. Cir. 2004).
Appellants argue that Boyce teaches a “shaped hardened load bearing
osteoimplant bone structure formed of compressed bone particles and not a
. . . formable putty composition” (Br. 5, 14).
This argument is not persuasive. Boyce teaches that a composition
having the consistency of a slurry or putty is formed, comprising all of the
9
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: September 9, 2013