Appeal No. 2006-0704 Page 30
Application No. 10/060,697
53 to column 3, line 5. While O’Leary does not characterize the demineralized bone as
having a structural matrix or protein sequestering functionality, in my opinion a person of
ordinary skill in the art would appreciate that demineralized bone provides these
functionalities when BMP is introduced into the bone particles and thereby provides a
scaffold, in addition to localizing BMP to the site of injury.
This is consistent with what a person of ordinary skill in this art knew and
understood at the time of appellants’ invention. See, e.g., Sottosanti, column 3, line 65
to column 4, line 2, “[t]he graft material is intended to function as a stimulus to bone
tissue growth. It can . . . provide inducers of bone tissue growth, be a scaffolding-type
structure that actively or passively attach osteoblasts or provide any combination of
these functions.” See also Snyders, column 3, lines 61-66, “[a]n object of the invention
is manifested in a composition of osteogenic composite materials in combination with
certain classes of biochemical agents having positive bone inductive effects to provide a
physiologically enhanced scaffolding for bony healing and body contour restoration.”
On reflection, the prior art of record teaches that calcium sulfate and
demineralized bone have properties that aid in the healing and development of new
bone. The prior art of record teaches the use of calcium sulfate or demineralized bone
in a composition that comprises hydroxypropyl methylcellulose and a mixing solution.
As discussed above, the evidence of record is consistent with what a person of ordinary
skill in the art would have known and understood at the time of appellants’ invention.
Therefore, when the evidence is considered as a whole, a person of ordinary skill
in the art would have found it prima facie obvious at the time of appellants’ claimed
invention to include calcium sulfate in the bone repair composition taught by O’Leary,
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