Appeal No. 2006-2627 Page 9
Application No. 09/947,833
sulfate is disclosed to improve the handling characteristics of Yim’s composition as
compared to a composition made up of osteogenic proteins, autogenous blood, and a
porous particulate polymer matrix.
We do not agree with the examiner that these disclosures would have led those
skilled in the art to add calcium sulfate to O’Leary’s composition. The examiner argues
that the skilled artisan would have expected the addition of calcium sulfate to O’Leary’s
composition to “add improved handling, moldability and consistency.” Examiner’s
Answer, page 11. Appellants, however, correctly point out that Yim does not state that
calcium sulfate improves those characteristics when added to any composition, only
that it does so when added to a specific prior art composition.
O’Leary does not state that the disclosed composition has characteristics that are
comparable to a composition of osteogenic proteins, autogenous blood, and a porous
particulate polymer matrix, like the one Yim discloses to be improved by the addition of
calcium sulfate. Nor does O’Leary disclose that a composition of demineralized bone
powder and carrier (and optional thickener) suffers from problems of poor handling,
moldability, or consistency.
On the contrary, O’Leary discloses that demineralized bone powder can be
mixed with a carrier, and optionally a thickener, to form compositions that range from
runny to putty-like. See column 3, lines 30-35; column 4, lines 39-41 (“The bone
powder composition . . . can be applied to the bone defect in a variety of ways, e.g., by
packing the site with the composition provided in the form of a highly viscous paste”);
column 5, lines 10-14 (exemplary composition of “pastelike consistency” that can be
applied using a syringe or spatula). Thus, O’Leary does not disclose that its
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007