Appeal No. 2003-1395
Application No. 09/497,123
with the configuration to penetrate the end plate of the adjacent
vertebral bodies “to help maintain the position of the implant in
situ” (col. 9, ll. 48-52). Accordingly, Rabbe describes any
number of spikes in any configuration necessary to maintain the
implant in position.
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has established a prima facie case of
anticipation in view of Rabbe which has not been sufficiently
rebutted by appellants’ arguments. Accordingly, we affirm the
examiner’s rejection of claims 1 and 2, and claims 9 and 14 which
stand or fall with claims 1 and 2, under 35 U.S.C. § 102(e) over
Rabbe.
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