Appeal No. 2006-3075 Page 7
Application No. 10/313,205
“The test for obviousness is not express suggestion of the claimed
invention in any or all of the references but rather what the references taken
collectively would suggest to those of ordinary skill in the art presumed to be
familiar with them.” In re Rosselet, 347 F.2d 847, 851, 146 USPQ 183, 186
(CCPA 1965). On this record, we find that the combination of Amrich and Hunter
teach a method of producing a modified surface on a metallic prosthetic
substrate comprising the steps of (1) modifying the texture of at least a portion of
the surface to a roughness of Rmax of about 0.4 mm or greater and (2) oxidizing
at least a portion of the surface to form a diffusion hardened surface on said
metallic substrate.
For the foregoing reasons we affirm the rejection of claim 1 under 35
U.S.C. § 103 as being unpatentable over the combination of Amrich and Hunter.
Claims 2-9, 14, 17 and 18 fall together with claim 1. However, since our
reasoning differs from that of Examiner, we designate our affirmance a new
ground of rejection under 37 C.F.R. 41.50(b) (July 2005).
TIME PERIOD FOR RESPONSE
This decision contains a new ground of rejection pursuant to 37 CFR
§ 41.50(b). 37 CFR § 41.50(b) provides “[a] new ground of rejection pursuant to
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