Appeal No. 2006-3075 Page 3
Application No. 10/313,205
19. Appellants define the term “texture modified” as “a native surface which has
been treated by techniques known in the art to enhance bone in-growth and on-
growth to improve fixation stability.” Specification, paragraph 44.
Claim Interpretation:
Claim 1 is drawn to a method of “producing a modified surface on a
metallic substrate.” The method comprises two steps. First, the surface
roughness of at least a portion of the metallic substrate is modified to an Rmax of
about 0.4 mm or greater. Second, at least a portion of the surface of the metallic
substrate is oxidized to form a diffusion hardened surface on said metallic
substrate.
Claim 1 does not require that the entire surface of the metallic substrate
have a roughness Rmax of about 0.4 mm or greater, nor does it require that the
entire surface be oxidized. Therefore, Claim 1 reads on a metallic substrate
wherein (1) one part has a roughness Rmax of about 0.4 mm or greater and (2)
another part is oxidized.
Obviousness:
Claims 1-9, 14, 17 and 18 stand rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Amrich and Hunter.
Examiner finds “Amrich teaches a method of modifying the texture of at
least a portion of the surface of a metallic implant substrate such as zirconium or
titanium prosthetic implant for the purpose of promoting bone ingrowth.” Answer,
page 3 (emphasis added). Examiner finds Amrich’s process is “commercially
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