Appeal 2006-2283
Application 10/375,343
viewed from the side as seen in the other embodiments” (Answer 4) is
unavailing. We therefore conclude that Appellant has demonstrated that the
Examiner erred in rejecting claim 3 as anticipated by Sutter. The rejection
of claim 3 is not sustained.
Appellant argues that Otani does not anticipate independent claims 1,
7, and 16 because Otani’s implant body has both a solid core and a porous
layer and, therefore, is not formed of a completely uniform porous structure
(Br. 11). The Examiner reads the bone fixation body formed of a
“completely uniform porous structure” claim recitation on Otani’s porous
layer 8 and likens the base portion 13 of Otani to Appellant’s elongated
protrusion 86 in Fig. 6 (Finding of Fact 4) extending into the bone fixation
body and to the “male protrusion” recited in dependent claim 9 (Answer 5).
The issue with respect to the rejection based on Otani is, therefore, whether
the porous layer 8 alone may be considered the bone fixation body “formed
of a completely uniform porous structure” as recited in Appellant’s
independent claims 1, 7, and 16.
Appellant’s arguments with respect to the Otani reference are
premised on a reading of the bone fixation body on Otani’s porous layer 8 in
combination with the core material base portion 13, which is not disclosed as
being porous, and not on the Examiner’s reading of the bone fixation body
on the porous layer 8 alone. There is no question that the porous layer 8 is
entirely porous throughout from its proximal end to its distal end; there is no
portion of the porous layer 8 that is not porous. Accordingly, the dispositive
issue with regard to the Otani rejection is whether the Examiner’s reading of
the bone fixation body on porous layer 8 alone is reasonable.
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