Appeal No. 2006-2627 Page 36
Application No. 09/947,833
injectable formulation which can be injected into the appropriate body space as required
for bone reconstruction.” See also, Yim, column 10, Table 2, wherein compositions
comprising calcium sulfate are malleable at 15 minutes. Therefore, I am not persuaded
by appellants’ unsupported assertion (Brief, page 6) that “the addition of calcium sulfate
hemihydrate to the O’Leary composition would have been avoided by one of skill in the
art since the resulting composition would not have been expected to maintain a flowable
state for an extended period of time. . . .”
Further, as I understand appellants’ argument, since calcium sulfate allegedly
quickly sets into a “hardened mass”37, a person of ordinary skill in the art would
recognize that if calcium sulfate was added to O’Leary’s composition there would be no
reason to also include a thickener, or protein sequestering agent, such as hydroxypropyl
methylcellulose. I disagree. Appellants’ argument is inconsistent with the evidence of
record, which teaches the inclusion of a thickener, or protein sequestering agent, such
as hydroxypropyl methylcellulose in a bone repair composition comprising calcium
sulfate. See Yim, column 8, lines 16-30. Accordingly, the argument is not persuasive.
In addition, I recognize appellants’ reference to O’Leary’s composition as
maintaining a “flowable state” for an “extended period of time.” Brief, page 6. It would
appear that appellants are suggesting that O’Leary’s composition is intended to be in a
“liquid” state for an extended period of time. In this regard, I note that appellants rely on
37 See, e.g., Brief, page 6, where appellants assert “if the composition is intended to set into a hardened
mass within a short period of time, settling would not be an issue.”
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