Appeal No. 2007-0606
Application No. 10/011,338
Furthermore, in Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ (Fed.
Cir. 1984), the Federal Circuit held that, where the only difference between the prior art
and the claims was a recitation of relative dimensions of the claimed device and a
device having the claimed relative dimensions would not perform differently than the
prior art device, the claimed device was not patentably distinct from the prior art device.
In our view, the figure 1A of Sertich depicts the width of the holes to be smaller
than the width of the pillars, not unlike the depiction of figure 19 of Appellants’
specification. More over, appellants attribute no particular benefit to the relative widths
of the holes and the width of the pillars. Thus, in our view, the claimed relative
dimensions of the width of the holes and the width of the pillars would not perform
differently than those of Sertich and thus, the claimed device was not patentably distinct
from the prior art spinal implant of Sertich. The rejection of claim 41 is affirmed.
Anticipation - Bagby
Claims 1-13, 16-22, 24-26, 33-36, 38-50, 52, and 54-59 stand rejected under 35
U.S.C. § 102(e) for anticipation over Bagby.
The appellants group independent claims 1, 30, 36 and 41 together for purposes
of this rejection and do not provide separate arguments for each of the independent
claims. Therefore we selected claim 30 as representative of the rejected claims.
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