Appeal No. 2007-0307
Application No. 09733,640
Shukla's implant composition to provide mechanical strength to the implant once it
is inserted in the body and reduce swelling of the material in the body." Id.
The appellants contend that Lundgren teaches away from the injectable
vehicles of Shukla, stating that compositions lacking dimensional stability are
unsatisfactory for tissue regeneration, citing Lundgren, col. 1, ll. 27-32 and 45-51.
Brief, page 12.
The examiner argues, on the other hand, that Appellants’ arguments
concerning teaching away in Lundgren are unsubstantiated and that "[t]he stability
of the implant after solidification does not mean it cannot be injectable." Answer,
page 21. The examiner argues that the composition of Lundgren exists in a
solution state prior to solidification, and therefore is "injectable". Id. In addition,
with respect to claim 34, the composition of Shukla is injected.
As indicated above in relation to the rejection over Lundgren, we do not
agree with appellants that Lundgren teaches away from an injectable composition.
We have no evidence of record establishing that the solvent composition of
Lundgren is not injectable. Therefore, the rejection of the claims for obviousness
over Shukla in view of Lundgren is affirmed.
3. Claims 1, 3-19, 34, 38, and 49-72 stand rejected under 35 U.S.C. § 103(b)
over Brodbeck in view of Lundgren.
Appellants acknowledge that Brodbeck discloses a combination of a
biocompatible polymer and a biocompatible solvent for controlled delivery of a
beneficial agent. Brief, page 12. Answer, page 22. The composition can be a
viscous gel, and may be modified to be less viscous in order to administer the
composition through a needle. Brodbeck, col. 9, ll 8-13. Brief, page 12. The
composition of Brodbeck is implantable. Abstract.
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