Appeal No. 2005-1675 Page 6
Application No. 09/523,503
completed if the surgeon was not able to completely cut through the condyles with
cutting guide 80 attached.
The appellant's argue (brief, p. 4) that:
Whiteside is entirely silent with regard to referencing any feature of the distal
femur, regardless of whether such features include condyles or trochlear region.
In addition, if Whiteside were to reference the non-prominent condyle or trochlear
region, more bone would be removed from the most prominent condyle than the
thickness of the prosthesis to be inserted, which is contrary to the statements just
cited.
The examiner's response to this argument (answer, pp. 3-4) is that:
Whiteside clearly shows in Figure 19 the fixture, which comprises member 81
and guide 80, referencing, i.e. refers to or indicate, the distal end 140 of the
femur and where to cut at the distal end of the femur. Moreover, Whiteside's
Figure 19 clearly shows that the fixture references to the trochlear region 143
(see Figures 14 and 19) since it slides along an axis between the condyles 141
and 142 of the femur, thus it indicates that area. Also, the guide 82, which is part
of the fixture, indicates or refers to, as shown in Figure 19, the condyle areas, i.e.
non-prominent and prominent, where a cut is done (see col. 9 lines 57-61).
In response to applicant's argument (see page 4, lines 23-26 of applicant's
Brief) that "if Whiteside were to reference the non-prominent condyle or trochlear
region, more bone would be removed from the most prominent condyle than the
thickness of the prosthesis to be inserted, which is contrary to the statement''
"The cutting guide surface 83 (not shown) is in position to remove the desired
amount of bone (approximately the thickness of the distal portion of the femoral
prosthesis component).'', it is noted that applicant's way of reference to the distal
femur is not the only way of "referencing''. Moreover, the claims only require
"references'' to the non-prominent or trochlear region, they do not require
"references'' in a specific way and the term "references'' has not been defined by
applicant in any specific way. Moreover, as explained above, Whiteside clearly
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