Appeal No. 2007-0606
Application No. 10/011,338
The examiner contends that "Bagby discloses a spinal implant comprising a
generally tubular shell having a plurality of pillars 118, 120 on an exterior surface
formed in a regular, non-helical array." Answer, page 4. The examiner finds that the
Bagby implant comprises a plurality of holes 130. Id.
Referencing Figure 5 of Bagby, an unrolled plan view of the cylindrical spinal
implant, is seen to possess through holes or fenestrations and to depict splines or
interrupted threads which meet the limitation of a plurality of pillars. See Col. 9, l 62 to
Col. 10, l 6.
Appellants contend that Bagby fails to disclose a spinal implant being adapted for
inserting between naturally adjoining spinal vertebrae as required by claims 1, 30, 36
and 41. Brief, page 12.
In our view, Bagby, Figure 1 evidences a cylindrical spinal implant which is
inserted between naturally occurring vertebrae. The implant of Figure 1 may take the
configuration of the alternative embodiment of Figure 5, which possesses each of the
claimed features. Thus we agree that the examiner has provided sufficient evidence to
support a prima facie case of anticipation of representative claim 30. Claims 1, 36 and
41 fall with claim 30, as no separate arguments have been provided by appellants for
these claims.
Appellants further contend that Bagby fails to disclose a plurality of pillars
projecting from an exterior surface as recited in claims 4, 16, 24, 29, 33, and 39. Brief,
page 13.
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