Appeal No. 2006-0704 Page 5
Application No. 10/060,697
ordinary skill in the art . . . would have been motivated to include a calcium sulfate
component into the composition of O’Leary et al. with the expected benefit disclosed by
Yim et al., i.e. that a calcium sulfate component would add improved handling,
moldability and consistency to the formulation of O’Leary as well as reducing the set up
time.” Id., pages 10-11.
The examiner acknowledges that O’Leary and Yim do not teach compositions
comprising cancellous bone, but cited Wironen for this limitation. The examiner
characterizes Wironen as disclosing “a bone paste for the repair of bone defects” and
noted that Wironen
states that the composition “may act as a carrier for cortical, cancellous or
cortical and cancellous bone chips. Such compositions are useful for
filling larger bone voids. In addition, when these bone chips are not
demineralized, they provide an added spectrum of biological properties
not exhibited by the gelatin alone or the gelatin plus the osteogenic
components.”
Id., page 12. The examiner concludes that “it would have been obvious to one of
ordinary skill in the art at the time the invention was made to include cancellous bone
chips into the composition of O’Leary . . . [because] they fill larger bone voids and
provide an added spectrum of biological properties to the composition.” Id.
Appellants argue that those skilled in the art would not have been led to combine
Yim and O’Leary as posited by the examiner:
[T]he Yim reference only suggests that a calcium sulfate hemihydrate-
containing substance (CSHS) provides [improved handling, moldability
and consistency] when combined with the formulation described in U.S.
Pat. No. 5,171,579 (see column 2, lines 51-65). Yim only suggests a
CSHS provides such advantages in the context of a formulation
comprising osteogenic proteins, autogenous blood, and a porous
particulate polymer matrix. . . . There is no suggestion in the Yim
reference that such improved properties would be expected in any other
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