Appeal No. 2007-0606
Application No. 10/011,338
3. 35 U.S.C. § 103
Claims 1-5, 7, 10-13, 16, 18-22, 29-31, 33-36, 38-50, 52, 54-55 and 58-59.
stand rejected under 35 U.S.C. § 103(a) for anticipation over Lin in view of Michelson.
The examiner finds that Lin discloses a spinal implant comprising a cylindrical
tubular shell having a plurality of pillars on an exterior surface formed in a regular array.
Answer, page 6. The examiner acknowledges that Lin does not teach the plurality of
holes as claimed, but indicates that Michelson (col. 1, ll 41 et seq.) evidences that it
would have been obvious to utilize holes in the exterior surface of the implant for the
purpose of influencing the adjacent vertebrae to form a bony bond to the implants and
to each other. Id.
Appellants contend that Lin and Michelson do not teach the plurality of pillars are
immobile as required by claims 16, 35, 43, 45, 55 and 59. Brief, page 17.
The examiner contends that the pillars of Lin cannot move radically in or out
upon deployment due to the presence of the shoulder or holding element. Figure 1;
Figure 5, element 21. In addition, Lin discloses at col. 4, l 30-36, that when the urging
element is rotate as to actuate the eccentric bearing in such a manner that the holding
elements of the stretching elements are retained, and thus not move.
Appellants contend there is no motivation to combine the cited references (Brief,
page 17), and that the combination does not teach that the diameter or width of the
holes is substantially less than the diameter or width of the pillars projecting from the
exterior surface of the implant as required by claim 41 (Brief, page 18).
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