Appeal 2007-2372
Application 10/395,654
filed March 24, 2003,1 under 35 U.S.C. § 103(a) in view of the combined
teachings of Michelson, U.S. Patent Publication 2002/0004683, published
January 10, 2002, from Application 09/903,141, filed July 10, 2001; Morris,
U.S. Patent Publication 2003/0120274, published June 26, 2003, from
Application 10/032,778, filed October 22, 2001; and Scarborough, U.S.
Patent 6,383,221, patented May 7, 2002.2 Claims 29-33, 40-51, and 53-60
are pending in the application. The Examiner objected to Claims 41, 51, and
60 as being dependent on a finally rejected claim yet allowable in
independent form.
Applicant argues the claims in separate groups of: (1) Claims 29-33,
40, and 42; (2) Claims 43-50; and (3) Claims 53-59 (Br., p. 8). However,
Applicant has made the same argument for each of the groups. Therefore,
we decide this appeal on the basis of independent method Claim 29. 37 CFR
§ 41.37(c)(1)(vii) (2006). Claim 29 is transcribed below (Br. App. A):
29. A method of inserting an interbody fusion implant made of
bone, comprising:
providing an implant formed of bone and having a body portion
with an upper bearing surface and opposite lower bearing surface, said
body portion further including a flexible upper flange member and an
1 Application 10/395,654 is said to be a divisional of application 09/777,702,
filed February 6, 2001, now U.S. Patent 6,562,073, dated May 13, 2003.
2 Applicant has not contested the status of Michelson or Morris as prior art.
We therefore hold such arguments waived.
2
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