Appeal No. 2006-2627 Page 33
Application No. 09/947,833
sulfate, demineralized bone, cancellous bone, hydroxypropyl methylcellulose and a
mixing solution, I turn to the merits of the rejection of claims 1, 23 and 25.
Claim 1
For the foregoing reasons, it is my opinion that the evidence on this record
clearly establishes that at the time of appellants’ invention a person of ordinary skill in
the art interested in repairing a large bone void would have found it prima facie obvious
to formulate a bone repair composition comprising calcium sulfate; demineralized bone
matrix; cancellous bone; hydroxypropyl methylcellulose (a plasticizing substance); and a
mixing solution.
Appellants provide no argument with regard to the teachings of the combination
of O’Leary, Yim and Wironen as it relates to the concentrations of calcium sulfate,
demineralized bone matrix, plasticizing substance or mixing solution as set forth in
claim 1. Accordingly, I find that appellants concede that the combination of O’Leary,
Yim and Wironen teach concentrations that fall within the scope of appellants’ claimed
invention for these ingredients.
With regard to the concentration of the remaining ingredient, cancellous bone,
appellants’ assert that Wironen “is completely silent as to any particular weight percent
or parts by weight of cancellous bone.” Brief, page 11. In response, the examiner finds
(Answer, page 25), Wironen teaches that cancellous bone is included in the
composition to fill larger bone voids. In this regard, the examiner reasons (Answer,
page 28), the concentration of cancellous bone recited in appellants’ claim 1 relate “to
both the quantity and size of the bone chips to be used.” As I understand the
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