Appeal No. 2006-0704 Page 33
Application No. 10/060,697
hemihydrate to the O’Leary composition would have been avoided by one of skill in the
art since the resulting composition would not have been expected to maintain a flowable
state for an extended period of time. . . .”
Further, as I understand appellants’ argument, since calcium sulfate allegedly
quickly sets into a “hardened mass”35, a person of ordinary skill in the art would
recognize that if calcium sulfate was added to O’Leary’s composition there would be no
reason to also include a thickener, or protein sequestering agent, such as hydroxypropyl
methylcellulose. I disagree. Appellants’ argument is inconsistent with the evidence of
record, which teaches the inclusion of a thickener, or protein sequestering agent, such
as hydroxypropyl methylcellulose in a bone repair composition comprising calcium
sulfate. See Yim, column 8, lines 16-30. Accordingly, the argument is not persuasive.
In addition, I recognize appellants’ reference to O’Leary’s composition as
maintaining a “flowable state” for an “extended period of time.” Brief, page 5. It would
appear that appellants are suggesting that O’Leary’s composition is intended to be in a
“liquid” state for an extended period of time. In this regard, I note that appellants rely on
Table 2, column 10 of Yim36, alleging that compositions comprising calcium sulfate were
“non-flowable within 15 minutes.” Brief, page 537. Appellants’ assertions are not
35 See, e.g., Brief, page 5, where appellants assert “if the composition is intended to set into a hardened
mass within a short period of time, settling would not be an issue.”
36 I note that the data presented in Table 2 of Yim is directed to the ability of calcium sulfate to improve
the handling characteristics of a composition such as that taught by U.S. Pat. No. 5, 171,579 (e.g., a
composition comprising blood). While this is one embodiment of Yim’s disclosure, as discussed above,
the bone graft composition disclosed by Yim at column 8, lines 16-28 does not contain blood.
37 At page 5 of the Brief appellants assert “Yim itself describes how quickly a calcium sulfate hemihydrate
solution loses flowability in Table 2 in column 10. Note that each tested composition appearing in Table 2
was non-flowable within 15 minutes.”
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