Appeal No. 2005-1002
Application No. 09/991,247
would have suggested to those of ordinary skill in the art. In re
Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981).
In the present case, the combined teachings of Michelson
‘973 and Boyce ‘187 would have suggested manufacturing the spinal
implant 400 disclosed by Michelson ‘973 from a machinable
composite of cortical bone particles and at least one
bioresorbable material as disclosed by Boyce ‘187, thereby
arriving at the subject matter recited in claim 1. The
appellant’s position that the appealed rejections are unsound
because this reference combination rests on impermissible
hindsight is not persuasive. Michelson ‘973 and Boyce ‘187
pertain to similar spinal implants and one of ordinary skill in
the art would have readily appreciated the implant materials
disclosed by Boyce ‘187 to be art-recognized alternatives to the
implant materials disclosed by Michelson. The description of
such materials by Michelson ‘973 expressly leaves open the
possibility that other materials may be used and does not in any
way teach away from the particular materials disclosed by Boyce
‘187. The advantages described by Boyce ‘187 for these materials
would have furnished the artisan with ample suggestion or
motivation to utilize same, e.g., a machinable composite of
cortical bone particles and at least one bioresorbable material,
to manufacture the implant disclosed by Michelson ‘973.
Accordingly, we shall sustain the standing 35 U.S.C.
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