Appeal No. 2006-0704 Page 24
Application No. 10/060,697
important biochemical factors that are important in bone healing. As a result, those of
ordinary skill in this art included both demineralized bone and calcium sulfate in a
variety of bone repair compositions.
In my opinion, this is the knowledge and understanding a person of ordinary skill
in the art would have as this person read the combination of references relied on by the
examiner. More significantly, all of this is consistent with the teachings of O’Leary, Yim
and Wironen as set forth above.26
The issue:
The issue before this panel can be divided into two parts. First, would it be prima
facie obvious to a person of ordinary skill in the art at the time the invention was made
to combine calcium sulfate and demineralized bone in a composition comprising a core
of ingredients that is common to both O’Leary and Yim? Second, if the answer to the
first part is yes, would it be prima facie obvious to a person of ordinary skill in the art at
the time the invention was made to add cancellous bone to this composition?
26 The majority failed to address the level of skill in this art. Nevertheless, the majority opines that by
discussing three of the documents cited in the background section of appellants’ specification, I have
modified the rejection of record. See supra n. 5. I disagree. The discussion of these documents simply
emphasizes what appellants recognize as background information. The level of ordinary skill in the art,
as exemplified by the evidence relied upon by the examiner, did not change simply because I discuss
three documents relied upon by appellants to set the stage for their disclosure. The majority would have
realized this had they considered the level of skill in this art. Since they did not, I do not find their
comment persuasive.
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