Appeal 2007-2372
Application 10/395,654
the prior art.” In re Wilson, 424 F.2d 1382, 1385, 165 USPQ 494, 496
(CCPA 1970).
Applicant admits that “Michelson discloses an interbody implant with
upper and lower flanges that are secured to adjacent vertebrae to prevent or
resist backout” (Br., p. 9). The Michelson implant has upper and lower
bearing surfaces (Michelson, p. 2, par. 42) and may be formed from bone,
among other materials (Michelson, p. 2, par. 41). Furthermore, Michelson
discloses a process of accessing the space between vertebrae, inserting the
body portion of the implant, and securing the flanges to the vertebrae
(Michelson, pp. 4-5, par. 53-54, 61). Besides describing this process,
Michelson depicts the result in Figures 9, 10, and 15.
The difference is, Michelson does not explicitly state that the flange
portions are made of a flexible bone material. However, Morris describes a
“plate … secured to one or both vertebral bodies to prevent the intervertebral
implant from backing out of the receiving bed” (Morris, p. 1, par. 14). This
plate “may be partially of fully demineralized … bone [to provide] … a
degree of flexibility to the plate” (Morris, p. 1, par. 15). Thus, each and
every limitation of Applicant’s claimed invention is described by the
combination of Michelson and Morris.
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