Interference No. 103,570
to, respectively, as Misiek (WX-4), Wallace (WX-7) and Draenert
(WX-14).
Misiek (WX-4)
There is no question that Misiek discloses the use of
“rounded” ceramic (dense hydroxylapatite) particles as a
component of soft tissue augmentation material. There is some
question though whether the rounded particles actually used in
the working examples of Misiek, viz., Calcitite® (HA-2), are in
fact also “substantially spherical” as that term has been defined
by Hubbard, given that Calcitite® particles are described in an
article by Lemons et al. as being spherical in shape.6
Hubbard has adduced convincing evidence that Calcitite® is
in fact not “substantially spherical” within our accepted
definition of that term. In particular, Dr. Misiek, a co-author
of Misiek (WX-4), has testified from personal knowledge that
Calcitite® particles are irregularly-shaped with rounded edges
and not “substantially spherical” as defined in Hubbard’s
involved application (HR 600-601). Dr. Misiek postulated that
when Lemons et al. described Calcitite® as spherical, they used
the term loosely to describe particles having rounded edges. The
6Lemons et al. is cited in footnote 9 on page 15 of Paper
No. 101.
9
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