Appeal No. 2006-2627 Page 27
Application No. 09/947,833
compositions comprising both demineralized bone and any one of a variety of reagents
that enhance the range of manipulative characteristics of strength and osteoconduction,
such as calcium sulfate. As discussed above, at the time of appellants’ invention, a
person of ordinary skill in the art would have combined both calcium sulfate and
demineralized bone in bone repair compositions to take advantage of their combined
effect on bone healing. See, e.g., Sottosanti, column 4, lines 10-17; and Snyders,
column 3, lines 51-54.
Accordingly, the first question distills down to whether a person of ordinary skill in
the art would have combined calcium sulfate and demineralized bone in a bone repair
composition that comprises (1) hydroxypropyl methylcellulose (a cellulose derivative);
and (2) a mixing solution.
As discussed above, both Yim and O’Leary teach bone repair compositions
comprising hydroxypropyl methylcellulose and a mixing solution. It is true that neither of
these references teach both calcium sulfate and demineralized bone in the same
composition. However, Yim and O’Leary teach that calcium sulfate and demineralized
bone, respectively, aid in bone healing when they are a part of a bone repair
composition comprising hydroxypropyl methylcellulose and a mixing solution.
There can be no doubt that “[o]bviousness is a complicated subject requiring
sophisticated analysis, and no single case lays out all facets of the legal test.” Dystar,
464 F.3d at 1367, 80 USPQ2d at 1650. Perhaps, what complicates this analysis is
getting inside the mind of a person of ordinary skill in the art at the time the invention
was made, to understand how this hypothetical person of ordinary skill in the art would
Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: November 3, 2007