We turn our attention first to the rejection of claims 1-4 as being anticipated by
Frey. Each of claims 1-4 calls for a substrate, physically configured to leave a concavity
in a vertebral endplate when urged thereagainst and a convex piece configured to
consume the concavity between the substrate and the vertebral endplate. The top and
bottom surfaces of the elastic hollow compressible body 6, on which the examiner
attempts to read the claimed substrate, are not physically configured to leave a concavity
in a vertebral endplate when urged thereagainst. Rather, the top and bottom surfaces of
the body 6, which is made of a compressible plastic and filled with an incompressible
fluid medium, such as silicon oil, are configured to conform to a surface against which
they are urged, in this case pressing against the anchoring elements 4, 5, formed of wire
mesh and secured to the vertebral bodies by ingrowth of bone tissue, by the sandwiching
of the body 6 between the anchoring elements. Consequently, the anticipation rejection
cannot be sustained.
We turn next to the rejection of claims 1, 6, 8 and 9 as being anticipated by
Suddaby. The disc prosthesis of Suddaby includes an expandable stent, comprising a pair
of elements 10, 12, each having a broad head 14 with a convex surface facing outwardly,
and a mass of material 30 that is hardened in situ around the stent, in the disc space. In
rejecting these claims, the examiner reads the claimed substrate on the broad heads 14.
Each of the broad heads 14 is outwardly convex and thus configured to fill the natural
concavity of the endplate of the vertebral body against which it is urged, quite the
opposite of being “physically configured to leave a concavity” in the endplate as called
for in claims 1, 6, 8 and 9. It follows that this rejection also cannot be sustained.
The rejection of claim 7, which depends from claim 6, as being unpatentable over
Suddaby is grounded in part on the examiner’s finding that Suddaby discloses a substrate
physically configured to leave a concavity in a vertebral endplate when urged
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