Appeal No. 2006-0704 Page 32
Application No. 10/060,697
For their part, appellants assert (Brief, page 4), “there is no motivation to
combine the calcium sulfate hemihydrate of Yim with the teachings of O’Leary.” For the
reasons set forth above the evidence of record does not support appellants’ assertion.
According to appellants, “O’Leary suggests the use of a thickener if settling of the bone
powder within the organic liquid is a problem . . . [suggesting] that the composition is
intended to maintain a liquid, flowable state for an extended period of time.” Brief,
page 5. Appellants assert (id.), “if the composition is intended to set into a hardened
mass within a short period of time, settling would not be an issue.” From this,
appellants conclude (id.), the “teachings of O’Leary are manifestly inconsistent with the
well-known properties of calcium sulfate hemihydrate solutions . . ., [which] harden or
set rather quickly as the calcium sulfate hemihydrate reacted with water to form the
dehydrate form.”
I disagree with appellants’ unsupported assertion of the well-known property of
calcium sulfate hemihydrate solutions, to harden quickly. Id. Contrary, to appellants’
assertion, a person of ordinary skill in the art would have recognized that compositions
comprising calcium sulfate (including calcium sulfate hemihydrate) may be formulated
into a putty, e.g., a semi solid. See, e.g., Hanker (column 2, lines 43-49), “[t]he implant
composition [comprising calcium sulfate hemihydrate] . . . may be made up as a dry mix
which can be moistened with water just prior to use to provide a fluid or semisolid,
injectable formulation which can be injected into the appropriate body space as required
for bone reconstruction.” See also, Yim, column 10, Table 2, wherein compositions
comprising calcium sulfate are malleable at 15 minutes. Therefore, I am not persuaded
by appellants’ unsupported assertion (Brief, page 5) that “the addition of calcium sulfate
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