Appeal No. 2001-2516 Page 3
Application No. 09/286,047
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determination which follow.
We turn first to the examiner’s rejection of claims 1 to 3, 5 to 11 and 20 under
35 U.S.C. § 102(b). We initially note that to support a rejection of a claim under
35 U.S.C. § 102(b), it must be shown that each element of the claim is found, either
expressly described or under principles of inherency, in a single prior art reference.
See Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir.
1983), cert. denied, 465 U.S. 1026 (1984).
The examiner states:
Ray et al. teaches a prosthetic spinal disc nucleus
comprising a hydrogel core 12 surrounded by a flexible yet
inelastic constraining jacket 14 which allows the core to
hydrate to a predetermined generally fixed volume. The
prosthetic nucleus is designed such that pressure on the
nucleus cavity will deform the presthetic nucleus preventing
its volume from increasing to one larger than that of the
cavity. The central portion of the presthsis of Ray et al. is
generally linear and the height of both the central portion
and the leading edge are relatively uniform. [Final rejection,
p. 2]
The appellants argue that Ray does not disclose:
. . . the hydrogel core being configured to have a dehydrated
shape in the dehydrated state . . . generally different from
the hydrated shape of the hydrated state. . .
as is recited in claim 1. Appellants’ argument has two components. Firstly, appellants
argue that the hydrogel core in Ray does not have different shapes in the hydrated and
dehydrated states. Secondly, appellants argue that Ray does not teach that the
hydrogel core itself has different shapes in the dehydrated and hydrated states, and that
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