Appeal No. 2006-2627 Page 42
Application No. 09/947,833
teachings of O’Leary, Yim and Wironen. Accordingly, I would affirm the rejection of
claim 23 under 35 U.S.C. § 103(a) as being unpatentable over the combined teachings
of O’Leary, Yim and Wironen. As discussed supra claim 24 falls together with claim 23.
Claim 25
As discussed above, claim 25 is drawn to a method of using a bone graft
substitute composition. The claimed method, however, provides only one method
step – “mixing the third portion with the first portion to form a mass”. Stated differently,
the single method step set forth in claim 25 comprises mixing about 50 to about 300
parts by weight of a mixing solution with about 80 to about 120 parts by weight of
calcium sulfate; about 10 to about 120 parts by weight of demineralized bone matrix; a
first portion of cancellous bone having a particle size between about 4 and about 10
mm; and about 1 to about 40 parts by weight of a plasticizing substance. While the
claim describes a “second portion,” which comprises “a second portion of cancellous
bone having a particle size between about 4 and about 10 mm,” the method of claim 25
does not recite a process step that includes this “second portion.” Stated differently, the
“second portion” is not an essential component of the method of claim 25. At best, the
method of claim 25 simply requires that “the first and second portions of cancellous
bone total about 20 to about 150 parts by weight of cancellous bone.” Accordingly,
since the second portion is not an essential component, we find that the “second
portion” as set forth in claim 25 reads on a “portion” that comprises 0 parts by weight of
cancellous bone. Accordingly, I interpret claim 25 to read on a first portion that
comprises about 20 to about 150 parts by weight of cancellous bone.
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