Appeal 2006-0423
Application 10/426,995
1 o Doty’s screw (Doty, Fig. 7:68), as a link member that precludes
2 movement, is not capable of facilitating a limited degree of movement
3 of the device (FF09).
4 Although Doty’s artificial disk replacement may be moveable during
5 installation as argued by the Examiner, it is clear that it must be moveable in
6 operation to be considered articulating in an anatomical context. Although the
7 Appellant provided no definition in the Specification, or other evidence in the
8 record for this definition, the ordinary and customary meaning of the term in an
9 anatomical context clearly requires movement in operation (FF05).
10 As to the Examiner’s contention that functional language in a thereby clause is
11 a field of use limitation and does not have to be explicitly recited in prior art to
12 negate patentability (Answer 7), the prior art must exhibit the capacity to meet that
13 functional language. Accordingly we do not sustain the Examiner's rejection of
14 claims 1-5 and 7-9 under 35 U.S.C. § 102(b) as anticipated by Doty.
15
16 Claims 1-4, 6 and 7 rejected under 35 U.S.C. § 102(b) as anticipated by
17 Michelson.
18 From the above Findings of Fact, supported by a preponderance of substantial
19 evidence, we conclude that
20 o Michelson’s cylindrical fusion implant (Michelson, Fig. 1:10) is not
21 an articulating device, although, variable angle screw (Michelson, Fig.
22 1:30), and spinal rod (Michelson, Fig. 3:50) are an anchoring unit and
23 link member (FF 08).
7
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