Appeal No. 2006-0704 Page 8
Application No. 10/060,697
include other protein-sequestering agents,” such as hydroxypropyl methylcellulose. See
column 7, lines 26-33.
Yim states that “U.S. Pat. No. 5,171,579 . . . disclosed that osteogenic proteins
can be sequestered at a site where bone inducing activity is desired using autogenous
blood, without using antifibrinolytic agents, provided that a porous particulate polymer
matrix is incorporated into the formulation.” Column 2, lines 51-56. Yim teaches that
the inclusion of CSHS “improve[s] the above formulation’s handling characteristics.”
See column 2, lines 56-65:
To reduce the preparation time and improve the above formulation’s
handling characteristics, Applicants have surprisingly found that it is
desirable to add a calcium sulfate hemihydrate-containing substance
(CSHS). . . . Adding a CSHS reduces setup time and provides improved
moldability and consistency of the resulting formulation.
In summary, then, O’Leary and Yim both teach compositions to be used in bone
repair. O’Leary’s composition is a flowable mixture of demineralized bone powder and
a carrier such as glycerol; it can also include hydroxypropyl methylcellulose as a
thickener. Yim’s composition contains osteogenic proteins such as BMPs and calcium
sulfate; it can also contain blood or another protein sequestering agent such as
hydroxypropyl methylcellulose and a porous particulate polymer matrix. The calcium
sulfate is disclosed to improve the handling characteristics of Yim’s composition as
compared to a composition made up of osteogenic proteins, autogenous blood, and a
porous particulate polymer matrix.
We do not agree with the examiner that these disclosures would have led those
skilled in the art to add calcium sulfate to O’Leary’s composition. The examiner argues
that the skilled artisan would have expected the addition of calcium sulfate to O’Leary’s
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