Appeal 2007-1526
Application 11/035,534
workable option from these teachings of Haruyuki. This is because, in the
Examiner’s view, the formation of depressions in the implant surface for
improving bone cell binding therewith, even if perhaps of somewhat smaller
size, would have been recognized as predictable and within the reach of such
an ordinarily skilled artisan by using lower concentrations of HF acid in the
treatment of an implant surface. The Examiner contends that the existence
of a prima facie case of obviousness can be supported when the claimed
range and a disclosed prior art range do not overlap but are close enough
such that one skilled in the art would have expected them to have
substantially the same or similar properties. See Titanium Metals Corp. v.
Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Appellants, on the other hand, refer to several passages of Haruyuki
and, based thereon, contend that:
Haruyuki clearly teaches:
(i) treatment with HF having a concentration less than 1%
provides pore sizes below 1 µm, and
(ii) an implant surface comprising pore sizes below 1 µm
gives an inadequate anchoring effect and is thus not
desirable.
Therefore, a person of ordinary skill in the art would
have no reason to use or further explore the treatment
containing less than 1% HF concentrations.
Br. 6 and 7.
Furthermore, Appellants contend in their Briefs that the process of
representative claim 79 is attended by unexpected results.
Thus, the dispositive issues before us with respect to the Examiner’s
obviousness rejection of representative claim 79 are: (1) Have the
Appellants identified reversible error in the Examiner’s assertion that a
prima facie case of obviousness has been presented based on the teachings
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