Appeal No. 2005-1002
Application No. 09/991,247
the patentability of any particular claim apart from the others,
all of the other appealed claims shall stand or fall with
representative claim 1. See In re Young, 927 F.2d 588, 590, 18
USPQ2d 1089, 1091 (Fed. Cir. 1991); In re Wood, 582 F.2d 638,
642, 199 USPQ 137, 140 (CCPA 1978).
Michelson ‘973, the examiner’s primary reference, discloses
a spinal fusion implant for insertion into a vacated disc space
between two adjacent vertebrae. The examiner relies on the
embodiment shown in Figure 10 wherein the implant 400 comprises a
body having an arcuate upper surface 402, an arcuate lower
surface 404, flattened side portions 406, openings 408 passing
through the upper and lower surfaces and ratcheting extending
from the upper and lower surfaces.
It is not disputed that Michelson ‘973 teaches, or would
have suggested, a spinal implant system responding to all of the
limitations in representative claim 1 except for those requiring
the implant to be manufactured from a composite of cortical bone
particles and at least one bioresorbable material combined to
form a machinable material. In this regard, Michelson ‘973
teaches that the spinal fusion implant “is made of material
appropriate for human implantation such as titanium and/or may be
made of, and/or filled and/or coated with a bone ingrowth
inducing material such as, but not limited to, hydroxyapatite or
hydroxyapatite tricalcium phosphate or any other osteconductive,
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