Appeal No. 2006-2627 Page 16
Application No. 09/947,833
should be affirmed.11 Accordingly, I dissent from the majority’s decision to reverse the
rejection under 35 U.S.C. § 103(a).
Appellants’ claimed invention:
Appellants argue the claims according to three claim groupings: I. claims 1-22; II.
claims 23 and 24’ and III. claims 25 and 26. Accordingly, I limit my discussion to
representative claims 1, 23 and 25. Claims 2-22 will stand or fall together with claim 1.
Claim 24 will stand or fall together with claim 23. Claim 26 will stand or fall together with
claim 25. In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091 (Fed. Cir. 1991).
Claim 1 is drawn to a composition which comprises the following five
components:
1. about 80 to about 120 parts by weight of calcium sulfate;
2. about 10 to about 100 parts by weight of demineralized bone matrix;
3. about 20 to about 130 parts by weight of cancellous bone;
4. about 1 to about 40 parts by weight of a plasticizing substance (e.g.,
hydroxypropyl methylcellulose12); and
5. about 21 to about 250 parts by weight of a mixing solution13.
11 Since the majority correctly affirmed the rejections under the judicially created doctrine of obviousness-
type double patenting, I limit my discussion to the rejection under 35 U.S.C. § 103(a).
12 See appellants’ specification, bridging sentence, pages 3-4.
13 While the majority points out (supra, page 3), that appellants’ specification states that a mixing solution
may “include water and phosphate buffered saline,” claims 1, 23 and 25 are not so limited.
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