thereagainst. In view of the above-discussed lack of support in Suddaby for this finding,
we cannot sustain this rejection.
NEW GROUND OF REJECTION
Pursuant to our authority under 37 CFR § 41.50(b), we enter the following new
ground of rejection.
Claims 2-4 are rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the invention.
Claim 1 is specifically directed to the embodiment of Figures 4A and 4B, which
includes a generally flat or planar tray 408 and convex or hemi-convex pieces 402, 404,
406 designed to fit between the tray 408 and the vertebral endplate. Claim 2, which
recites a substrate constructed of multiple pieces adapted to conform to the vertebral
endplate, and claims 3 and 4, which recite a substrate constructed of a flexible material to
fit the vertebral endplate, are directed exclusively to the embodiment of Figures 2A, 2B
and to the embodiments of Figures 2A, 2B and 3A, 3B, respectively. The embodiments
of Figures 2A, 2B and 3A, 3B comprise substrates that are physically configured to
conform to the vertebral endplate, not to leave a concavity in a vertebral endplate as
called for in claim 1 from which claims 2-4 depend. Accordingly, claims 2-4 are
inconsistent both internally and with appellant’s underlying disclosure, as they recite a
substrate which is both physically configured to leave a concavity in a vertebral endplate
when urged thereagainst and constructed of either multiple parts or of a flexible material
to conform to or fit the vertebral endplate.
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