Appeal No. 2003-1395
Application No. 09/497,123
10-16). Therefore the flange 35 would be sized to rest on an
edge of the implant cylinder 21.
Appellants argue that Rabbe does not disclose, teach or
suggest a “first channel” in the top surface “extending from the
edge for receiving a surgical instrument” as required by claim 1
since the mounting slots 47 disclosed by Rabbe are configured to
support a separate end cap 23 which would prevent a surgical
instrument from being received in slots 47 (Brief, page 6; Reply
Brief, page 3). This argument is not persuasive since Rabbe
teaches that the end cap 23 “can be eliminated if bone growth
between the adjacent vertebrae and through the replacement body
is preferred.” Col. 6, l. 65-col. 7, l. 2. Thus mounting slots
47 would clearly be capable of receiving a surgical instrument.
See In re Schreiber, supra.
With respect to the rejection of claim 2 on appeal,
appellants argue that teeth 91 in Rabbe form a single ring and
not a two dimensional array as claimed (Brief, page 6; Reply
Brief, page 4). This argument is not well taken since the spikes
91 taught by Rabbe must be considered as at least a “two
dimensional array” as this language is ordinarily used (Answer,
page 6). Furthermore, Rabbe teaches that the end face 86 of the
flange 85 includes “a number of spikes 91 projecting therefrom”
8
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