Appeal No. 2006-2627 Page 40
Application No. 09/947,833
O’Leary recognizes the problem noted by Wironen when glycerol is used as the carrier.
See O’Leary, column 3, line 63 – column 4, line 7, emphasis added,
where [for example] the carrier component is glycerol and separation of
bone powder occurs to an excessive extent where a particular application
is concerned, a thickener such as . . . hydroxypropyl methylcellulose . . .
can be combined with the carrier in an amount sufficient to significantly
improve the suspension-keeping characteristics of the composition.
Therefore, as I understand O’Leary, when the solution is such that the demineralized
bone cannot be properly sequestered for a particular surgical application, a thickening
agent (or protein-sequestering agent) should be included in the composition. One such
thickening agent, or protein-sequestering agent, taught by O’Leary is hydroxypropyl
methylcellulose. Apparently recognizing the same problem with their composition, Yim
teaches the use of hydroxypropyl methylcellulose, as well as calcium sulfate, as a
protein-sequestering agent. Yim, column 7, lines 26-37, 50-54 and column 8,
lines 25-30. Based on the foregoing analysis, it would appear that the combination of
O’Leary and Yim, would overcome the disadvantage Wironen attributes to the O’Leary
composition. Accordingly, I am not persuaded by appellants’ argument.
On reflection, it is my opinion that the evidence of record supports the examiner’s
conclusion that a bone repair composition comprising calcium sulfate; demineralized
bone matrix; cancellous bone; hydroxypropyl methylcellulose; and a mixing solution in
the amounts set forth in appellants’ claimed invention would have been prima facie
obvious to a person of ordinary skill in the art at the time the invention was made. As
discussed above, appellants’ arguments to the contrary are insufficient to rebut this
prima facie case of obviousness. Accordingly, I would affirm the rejection of claim 1
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