Appeal No. 2006-0704 Page 36
Application No. 10/060,697
bone paste that contains thermally crosslinkable gelatin[ ]41 as the carrier for one or more
osteogenic components.” Id. According to appellants (Brief, page 9), Wironen
“specifically contrasts the teachings therein with a commercialized embodiment
[(GRAFTON)] of the formulation described in the O’Leary reference.” However, upon
closer inspection of Wironen, I find that the reference discloses (page 3, lines 22-26):
one commercially available product, GRAFTON®, (see U.S. Patent No.
5,484,601) is a non-cross-linkable composition of demineralized bone
powder suspended in a polyhydroxy compound (e.g. glycerol) or esters
thereof, optionally including various other ingredients, including gelatin.
It is considered likely that this material is rapidly washed away from the
implant location as the carrier matrix is glycerol, which is water soluble.
As I understand appellants’ argument, Wironen recognizes a “disadvantage” of
one embodiment of O’Leary. I note, however, that “[a]ll the disclosures in a reference
must be evaluated . . . a reference is not limited to the disclosure of specific working
examples.” In re Mills, 470 F.2d 649, 651, 176 USPQ 196, 198 (CCPA 1972). In this
regard, I note that O’Leary does teach that glycerol, as well as a number of other
agents, may be used as a carrier. See, e.g., O’Leary, column 3, lines 36-55. Further,
O’Leary recognizes the problem noted by Wironen when glycerol is used as the carrier.
See O’Leary, column 3, line 63 – column 4, line 7, emphasis added,
where [for example] the carrier component is glycerol and separation of
bone powder occurs to an excessive extent where a particular application
is concerned, a thickener such as . . . hydroxypropyl methylcellulose . . .
can be combined with the carrier in an amount sufficient to significantly
improve the suspension-keeping characteristics of the composition.
41 Thermally cross-linkable gelatin is a preferred embodiment of Wironen’s disclosure. See, e.g., page 7,
lines 16-25, “[t]he composition of this invention comprises gelatin. . . . The gelatin is preferably thermally
cross-linkable. . . .” In this regard, I remind appellants that a reference is not limited to its preferred
embodiments.
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