Appeal No. 1997-0975 Page 8
Application No. 08/389,303
particular use of the prosthetic device in binding to a
hydroxyapatite portion of bone and on the capability of the
device to induce the formation of a calcium phosphate layer or
deposit calcium, all of which are not required by the claims.
See In re Self, supra. Indeed, appellants appear to further
undercut the de Groot declaration by acknowledging in their
specification that the claimed invention is not limited to the
theoretical discussion therein regarding how the polymer may bind
to bone (specification, pages 2 and 3).
Appellants’ additional arguments and the de Groot
declaration opinion regarding Jones teaching away from the
claimed bone binding properties by teaching collagenous tissue
bonding and surface energy matching are likewise unconvincing
for the reasons discussed above and since the claims do not
require a specific bone binding mechanism but rather a prosthetic
device that could be fastened to bone by a variety of techniques
unrelated to those discussed by the de Groot declaration.
Upon consideration of the evidence and arguments presented,
we find ourselves in agreement with the examiner's position.
Accordingly, we will sustain the examiner's stated § 102 and §
103 rejections.
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