Appeal No. 2006-0704 Page 15
Application No. 10/060,697
only with regard to the presence of demineralized bone in one (O’Leary), and calcium
sulfate7 (Yim) in the other. Adding to this body of evidence is a third reference
(Wironen) which teaches a bone repair composition comprising demineralized bone and
any one of a variety of reagents that “enhance the range of manipulative characteristics
of strength and osteoinduction,” 8 e.g., the properties Yim attributes to calcium sulfate.9
Both O’Leary (column 1, lines 15-17) and Yim (column 8, lines 25-28) compliment
Wironen by teaching, inter alia, that demineralized bone and calcium sulfate aid in the
development of new bone. In this regard, I note that Wironen teaches that it is desirable
for a bone repair composition to be both osteoconductive and osteoinductive. The
evidence of record establishes that a composition comprising demineralized bone and
calcium sulfate fulfills this objective. Lastly, Wironen explains that when one intends to
repair large bone voids it is a matter of common sense to add cancellous bone to a
bone repair composition. Wironen, page 13, lines 11-14.
For their part, the majority is determined to find that the evidence of record in this
case is not sufficient to support a prima facie case of obviousness. In their rush to
reverse the rejection under 35 U.S.C. § 103(a), the majority speaks of the
7 Yim discloses the use of calcium sulfate hemihydrate. Appellants’ claims 16 and 23 requires calcium
sulfate. For clarity, I note that according to appellants’ specification the calcium sulfate can be calcium
sulfate hemihydrate. See, e.g., “Preferred Embodiment 6,” appellants’ specification, page 9. Therefore,
all reference to calcium sulfate, herein, refers to both calcium sulfate and calcium sulfate hemihydrate.
8 See Wironen, page 6, lines 8-9.
9 Yim, column 8, lines 25-28, calcium sulfate provides, inter alia, “a structural matrix function [and] an
osteoconductive matrix. . . .”
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