Appeal 2007-0532
Application 10/828,316
blood cells, platelets, blood plasma, pluripotential cells, osteoblasts,
osteoclasts, and fibroblasts, epithelial cells, and endothelial cells present at a
concentration of 105 – 108 per cc of the carrier” (emphasis added). The
emphasized elements of the claim make it unclear what part(s) of the list the
“105 – 108 per cc” limitation applies to.
We need not labor over the question, however. The “cell elements”
recited in claim 23 include “blood plasma” and Boyce suggests including
“blood” in its composition. Since blood plasma does not have a
concentration measured in units/cc, it is apparent that the “105 – 108 per cc”
limitation does not apply to that element of claim 23. Boyce’s “blood”
includes “blood plasma” as one of its constituents, and Boyce therefore
suggests a composition meeting the limitations of claim 23.
With respect to claim 26, Appellants argue that “the characterization
of the Examiner that the sizes of the bone particles used in Boyce . . .
correspond to that of the present invention is not correct,” and none of the
cited references teach the particle size range recited in the claim (Br. 23-24).
This argument is also unpersuasive. As discussed above, Boyce
teaches particles that can be “relatively fine powders,” ranging in size from
0.5 to 12 mm and having a length-to-thickness ratio of, e.g., 1:1 (col. 4,
ll. 55-60). Claim 26 recites a size range of 100 to 850 microns, or 0.1 to
0.85 mm. The claimed size range therefore overlaps the size range disclosed
by Boyce. “[W]here there is a range disclosed in the prior art, and the
claimed invention falls within that range, there is a presumption of
obviousness. But the presumption will be rebutted if it can be shown: (1)
That the prior art taught away from the claimed invention; or (2) that there
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