Appeal No. 2006-0704 Page 37
Application No. 10/060,697
Therefore, as I understand O’Leary, when the solution is such that the demineralized
bone cannot be properly sequestered for a particular surgical application, a thickening
agent (or protein-sequestering agent) should be included in the composition. One such
thickening agent, or protein-sequestering agent, taught by O’Leary is hydroxypropyl
methylcellulose. Apparently recognizing the same problem with their composition, Yim
teaches the use of hydroxypropyl methylcellulose, as well as calcium sulfate, as a
protein-sequestering agent. Yim, column 7, lines 26-37, 50-54 and column 8, lines 25-
30. Based on the foregoing analysis, it would appear that the combination of O’Leary
and Yim, would overcome the disadvantage Wironen attributes to the O’Leary
composition. Accordingly, I am not persuaded by appellants’ argument.
On reflection, it is my opinion that the evidence of record supports the examiner’s
conclusion that a bone repair composition comprising calcium sulfate; demineralized
bone matrix; cancellous bone; hydroxypropyl methylcellulose; and a mixing solution
would have been prima facie obvious to a person of ordinary skill in the art at the time
the invention was made. As discussed above, appellants’ arguments to the contrary are
insufficient to rebut this prima facie case of obviousness. Accordingly, I would affirm the
rejection of claim 16 under 35 U.S.C. § 103 as being unpatentable over the combination
of O’Leary, Yim and Wironen. As discussed above, claims 17-22 fall together with
claim 16.
Claim 23
As discussed above, claim 23 depends from and further limits the composition of
claim 16 to require specified concentrations of ingredients. Appellants provide no
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