Appeal No. 1997-2634
Application 08/222,662
claimed porous polyphosphazene structure, replacing the structure with bone as the
polyphosphazene degrades. Brief, section V.
In our view, the mere fact that Elia’s porous, biodegradable polyphosphazene
matrix forms a temporary container, or pocket, for a “bone augmenting” substance, rather
than forming the bone augmenting substance itself, does not distinguish it from the claimed
matrix. Both Elia’s container and the claimed polyphosphazene matrix are porous,
biodegradable structures implanted at a site “for repair or replacement of bone.”
Nevertheless, Elia does not disclose the particular polyphosphazene derivatives, or narrow
range of porosity, required by the claims. Thus, the ultimate issue raised by the examiner’s
rejection is whether the prior art provides a reason or suggestion which would have
reasonably directed one skilled in the art to the claimed invention: a porous biodegradable
structure, made up of the same polyphosphazene derivatives disclosed by Laurencin, “with
pore dimensions of between 100 and 250 microns”.6
Returning to Elia’s disclosure, we note that there is no indication that the porous
containment system functions as a growth surface for osteoblasts. Indeed, its purpose is
to hold hydroxyapatite or a similar “bone regeneration material” against existing bone, and
to control the passage of nutrients and other substances into and out of the bone
6As stated in Pro-Mold & Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568,
1573, 37 USPQ2d 1626, 1629 (Fed. Cir. 1996) (citation omitted), “It is well-established
that before a conclusion of obviousness may be made based on a combination of
references, there must have been a reason, suggestion, or motivation to lead an inventor
to combine those references.”
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