Appeal No. 2006-3075 Page 6
Application No. 10/313,205
Appellants arguments fail to account for the language in claim 1 that “at
least a portion of” the substrate’s surface is oxidized and “at least a portion of”
the substrate’s surface is modified in roughness. Instead, Appellants arguments
focus on the prior art’s failure to teach the oxidation of a substrate that has a
roughness Rmax of about 0.4 mm or greater. However, neither Amrich, Hunter
nor Appellants’ claims requires that the entire surface of the substrate, or that the
roughened surfaces of the substrate be oxidized.7 Therefore, we are not
persuaded by Appellants’ arguments.
For the same reasons we are not persuaded by the two Heuer
Declarations8, the TWC publication9 or Watson 10 which are relied upon by
Appellants to support the argument that a person of ordinary skill in the art would
not use Amrich’s method to prepare a surface to be oxidized according to Hunter.
See, e.g., Brief, bridging sentence, pages 11-12. As discussed above, a person
of ordinary skill in the art would recognize from the combined teachings of Amrich
and Hunter that at least one part of the metallic substrate is treated according to
the method of Amrich to allow ingrowth of bone into the substrate, and at least
another part is treated according to the method of Hunter to provide a low friction,
wear resistant oxide coating of uniform thickness for articulating surfaces.
7 We recognize that Hunter teaches the porous bead or wire mesh surface on Hunter’s metallic
substrate “can be treated simultaneously by the oxidation of the base prosthesis for the
elimination or reduction of metal ion release.” However, we find no requirement in Hunter that
these surfaces must be simultaneously oxidized with the articulating region of the prosthesis, or
that oxidization is necessary for the irregular surface structures produced by Amrich’s method.
8 See Heuer Declaration (First Declaration), executed February 8, 2005; and Heuer Declaration
(Second Declaration), executed July 25, 2005.
9 TWC, Vol. 12, No. 7 (1996).
10 Watson et al. (Watson) 3,615,885 Oct. 26, 1971
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