Appeal No. 2006-2627 Page 30
Application No. 09/947,833
Therefore, in my opinion, it would have been prima facie obvious to a person of
ordinary skill in the art at the time of appellants’ invention to combine calcium sulfate,
and demineralized bone together with a common core of ingredients that comprises
hydroxypropyl methylcellulose and a mixing solution to aid in bone healing. To do so
would require nothing more than mixing two conventional bone repair compositions.
Kerkhoven, 626 F.2d at 850, 205 USPQ at 1072.33 As discussed above, this is exactly
why people of ordinary skill in the art have combined both calcium sulfate and
demineralized bone together in bone repair compositions for years prior to appellants’
filing date. The combination of demineralized bone and calcium sulfate provides the
properties that result in a desirable bone repair composition. See Wironen, page 3,
lines 14-16, specifically, the resulting bone repair composition is both osteoconductive
and osteoinductive.
The evidence on this record is consistent with the knowledge and understanding
of a person of ordinary skill in the art. According to Yim (column 8, lines 25-28), the
calcium sulfate component of the bone repair composition provides an osteoconductive
functionality. Stated differently,Yim teaches that the calcium sulfate component of a
bone repair composition aids in the development of new bone. The evidence of record
establishes that demineralized bone also has an osteoconductive functionality.
O’Leary, column 1, lines 15-17, “[b]one powder contains one or more substances . . .
33 There is no doubt that neither Yim nor O’Leary speak to detergents (as in Kerkhoven), or reagents that
stabilize plastics against the oxidative and deteriorative effects of ultraviolet light (as in Susi), or
magnesium oxide and calcium carbide (as in Crockett) or amiloride and hydrochlorothiazide (as in Merck
& Co. v. Biocraft Labs., Inc., 874 F.2d 804, 808-09, 10 USPQ2d 1843, 1847 (Fed. Cir. 1989)). What Yim
and O’Leary do speak to is a bone graft composition that uses calcium sulfate (Yim), or demineralized
bone (O’Leary) to aid in bone healing. As discussed above, this is exactly why people of ordinary skill in
the art have combined both calcium sulfate and demineralized bone together in bone repair compositions
for years prior to appellants’ filing date.
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