Appeal No. 2006-2627 Page 25
Application No. 09/947,833
calcium ions to the process.” Snyders, column 4, lines 64-68. See also Hanker,
column 1, lines 28-30, “[t]he [calcium sulfate] plaster also provides a source of calcium
in the area of the implant and stimulates revascularization and bone formation; and
Sottosanti (column 3, lines 10-12), “[t]he composite graft material [which contains
calcium sulfate] also supplies a ready source of calcium for rapid mineralization.”
Therefore, at the time of appellants’ claimed invention, a person of ordinary skill
in the art would have recognized, inter alia, that calcium sulfate provides a source of
calcium ions that is important in bone healing, and that demineralized bone provides
important biochemical factors that are important in bone healing. As a result, those of
ordinary skill in this art included both demineralized bone and calcium sulfate in a
variety of bone repair compositions. In addition, those of ordinary skill in this art knew
that the components of the bone repair composition can be packaged into a kit.
See, e.g., Sottosanti, column 2, lines 20-23.
In my opinion, this is the knowledge and understanding a person of ordinary skill
in the art would have as this person read the combination of references relied on by the
examiner. More significantly, all of this is consistent with the teachings of O’Leary, Yim
and Wironen as set forth above.27
27 The majority failed to address the level of skill in this art. Nevertheless, the majority opines that by
discussing three of the documents cited in the background section of appellants’ specification, I have
modified the rejection of record. See supra n. 5. I disagree. The discussion of these documents simply
emphasizes what appellants recognize as background information. The level of ordinary skill in the art,
as exemplified by the evidence relied upon by the examiner, did not change simply because I discuss
three documents relied upon by appellants to set the stage for their disclosure. The majority would have
realized this had they considered the level of skill in this art. Since they did not, I do not find their
comment persuasive.
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