Appeal 2006-2283
Application 10/375,343
7, and 16. Other issues are whether Kawahara’s laminated body satisfies the
recitation “wherein the entire bone fixation body is porous” in dependent
claim 2 (Br. 14), is “entirely porous from the proximal to distal ends,” as
recited in dependent claim 15 (Br. 14-15), and “has a cross section formed
entirely of the porous structure,” as recited in dependent claim 17 (Br. 15).
In order to resolve the first issue, we must first determine how the
term “uniform” is used in Appellant’s claims 1, 7, and 16. Appellant’s
argument appears to be grounded on the position that the language
“completely uniform porous structure” requires that the porosity and pore
size of the body fixation body is the same throughout the body. Appellant’s
Specification, however, does not support such an interpretation. The term
“uniform” is not used in Appellant’s Specification, outside of claims 1, 7,
and 16 as now presented. Moreover, the term “uniform” was not in
Appellant’s claims as originally filed. With respect to porosity and pore
size, Appellant describes the size and shape of the porous structure as
emulating the size and shape of the porous structure of natural bone and
discusses an “average” pore diameter of about 40 µm to about 800 µm with
a porosity from about 45% to 65% (Specification 5). There is nothing in this
description that would convey to one of ordinary skill in the art that the
porosity and pore size are the same throughout the entire body. In fact, the
use of the term “average” implies that the pores in the body vary in size.
Consistent with Appellant’s disclosure, we interpret “completely uniform
porous structure” to require merely that the entire structure be porous, that
is, all parts of the body are porous, not that the porosity or pore size of the
body be identical throughout the body. In other words, the term “uniform”
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