Appeal No. 1997-2744
Application No. 08/243,520
The examiner dismisses the Guler Declaration (Answer, page 4) as “opinion
only since it does not set forth how the trabecular bone and cortical bone differ
structurally and metabolically.” The examiner erred in dismissing the Guler
Declaration without consideration. As set forth in In re Lindell, 385 F.2d 453, 456,
155 USPQ 521, 524 (CCPA 1967) “some weight ought to be given to a
persuasively supported statement of one skilled in the art on what was not obvious
to him” [citation omitted].
Furthermore, as explained by appellants (Reply Brief, pages 2-4):
Dr. Guler stated the following with respect to the
distinctions between cortical bone and trabecular bone:
In this regard, the skeleton is made up of both cortical,
or compact bone, and trabecular or cancellous bone.
… Trabecular bone has a higher turnover rate than
cortical bone (about eight times as high). Based on the
foregoing, it is my opinion that any results obtained with
respect to trabecular bone cannot be extrapolated to
cortical bone since the two bone types are structurally
and metabolically different.
…
Dr. Guler distinguished the structure and metabolism of
immature bone found in young mammals as studied in Mueller
from that of mature bone which is the locus of cortical bone
osteoporosis …
Cortical bone osteoporosis, which can be caused by
post-menopausal estrogen deficiency, is a disease of
mature bone and mature bond differs both structurally
and metabolically from immature bone. … [T]he
composition of mature bone differs from immature
bone. For example, bone is made up of a matrix
component and several salts. Newly formed bone
generally has a considerably higher percentage of
matrix in relation to salts as compared with mature,
compact bone. Thus, any results from studies
concerning immature bone cannot be extrapolated to
mature bone.
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