Appeal 2006-1953
Application 10/195,347
5. OBVIOUSNESS IN VIEW OF SCHWARTZ AND PATEL
Claims 3-6, 27, 28, 51, 52, 62, 68, 76, 78, 79, 83, 84, 99, 104-106,
127-129, 149, 151, and 152 stand rejected under 35 U.S.C. § 103 as obvious
in view of Schwartz and Patel.4 Of the rejected claims, Appellants have
separately argued claim Groups that are represented by claims 3, 4, and 51.5
Claims 3 and 4 depend on claim 1, and add the following limitations:
in claim 3, the ECM comprises comminuted ECM; and in claim 4, the ECM
is, e.g., vertebrate SIS.
Claim 51 depends on claim 42 via claim 50. Claim 50 requires the
ECM to take one of several forms, including comminuted. Claim 51
requires the ECM to be one of several types, including vertebrate SIS.
The Examiner cited Patel for its disclosure of using lyophilized
extracellular matrix (e.g. SIS) to form multilaminar tissue grafts (Answer 5)
but that limitation is not required by the broadest claim in each of
Appellants’ Groups. As discussed on pages 8-10 above, we conclude that
Schwartz describes a device meeting the limitations of claims 1 and 42, and
also teaches comminuted SIS. While Schwartz does not expressly teach
using vertebrate SIS, Appellants do not dispute that those skilled in the art
4 Claims 84, 99, 149, 151, and 152 have been withdrawn from appeal.
5 Appellants also separately argued claims 27, 28, 76, 83, and 127-129.
Those claims include the limitation that the anchor portion of the device is
formed from shaped ECM. For the reason discussed above with respect to
claim 24, we conclude that Schwartz does not suggest that limitation.
Neither does Patel, which the Examiner relies on only for teaching tissue
grafts made of lyophilized ECM (Answer 5). We therefore reverse the
rejection of claims 27, 28, 76, 83, and 127-129.
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