Appeal No. 2003-1395
Application No. 09/497,123
surface of the ring, with the channel extending in a downward
direction (see Figures 2, 3 or 3A).
In view of the foregoing claim construction and
interpretation of Biedermann, we determine that the examiner has
shown an end member of Biedermann with a first and second
portion, the first portion having an edge and a first channel
extending from the edge, a second portion configured and
dimensioned to be inserted into the bore of the implant (see col.
3, ll. 1-8), and a shoulder joining the first and second portions
sized to rest on an edge of the implant (see Figure 6). The
intended capability of the first channel (“for receiving a
surgical instrument”) is clearly within the capability of the
channel shown by Biedermann. See In re Schreiber, 128 F.3d 1473,
1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997).
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has established a prima facie case of
anticipation which has not been sufficiently rebutted by
appellants’ arguments. Accordingly, we affirm the examiner’s
rejection of claim 1, and claims 7, 9, 14, 15 and 17 which stand
or fall with claim 1, under 35 U.S.C. § 102(b) over Biedermann.
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