Appeal No. 97-2606 Page 11
Application No. 08/017,568
claimed "means for force fit engaging a long bone canal"
requires more (i.e., flutes, spines, or both as shown in
Figures 1-3, 4, 5, 11 and 12). In addition, we note that the
issue of whether it would have been obvious to one of ordinary
skill in the art at the time the invention was made to modify
Hack or other prior art (e.g., German 92 13 218.9 ) by prior 4
art teaching "means for force fit engaging a long bone canal"
(e.g., European Patent Application 0 393 608 or PCT WO
83/02555) is not an issue before us in this appeal.
The applied prior art fails to suggest all the claimed
limitations for the reasons set forth above. Accordingly, the
decision of the examiner to reject claims 1 through 7 and 9
under 35 U.S.C. § 103 is reversed.
4On March 16, 1995, the appellants filed an affidavit
under 37 CFR § 1.131 (Paper No. 12) to swear back of the
November 26, 1992 effective date of this reference. Our
review of the record finds no indication that the examiner
ever considered whether or not this affidavit was effective to
remove this reference as prior art.
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