Appeal 2006-1953
Application 10/195,347
Claim 65 is directed to a device similar to that of claim 1 but requires
that the naturally occurring ECM is comminuted SIS and that the ECM is
“cured to have a strength sufficient to withstand the compression and shear
stress to which the articular cartilage is subjected.” We agree with the
Examiner that Schwartz discloses both of these limitations.
Schwartz expressly discloses small intestine submucosa (Schwartz,
col. 11, l. 35) in a group in which all the other members are types of cells.
Schwartz also teaches that the SIS can be mixed with the basic implant
composition during polymerization (Schwartz, col. 11, l. 25). Thus, those
skilled in the art would have understood Schwartz’s reference to SIS to
mean comminuted SIS. With regard to the curing limitation, Schwartz
expressly teaches annealing the plug/insert to modify its hardness and
longevity. We agree with the Examiner that the plug/insert disclosed by
Schwartz would inherently meet the strength limitation recited in claim 65.
Appellants argue that Schwartz does not teach a plug comprising a
naturally occurring ECM seeded with the cells listed in claim 42 (Br. 28), or
a plug comprising comminuted naturally occurring ECM (id. at 26). For the
reasons discussed above, we disagree. We affirm the rejection of claims 42
and 65 as anticipated by Schwartz. Claims 43-45, 50, 53, and 54 fall with
claim 42; claim 103 falls with claim 65.
Claim 24 is a different matter. Claim 24 requires that both the
plug/insert and the anchor of the cartilage repair device comprise naturally
occurring ECM. Appellants have argued that the “Examiner has not
identified a teaching in Schwartz which discloses an anchor formed of
naturally occurring extracellular matrix” (Br. 26).
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