Appeal 2007-2372
Application 10/395,654
Applicant argues that “Morris et al. teaches away from its
combination with Michelson” (Br., p. 12). Morris teaches an implant
retaining device that is separate from the implant positioned in the disk
space. Morris states (Morris, p. 1, par. 11-12):
A variety of different devices have been developed to retain an
intervertebral implant at a fixed position within the intervertebral
space. These devices include, inter alia, screws and formations
formed on the implant itself. Such devices often inhibit insertion of
the implant into the intervertebral space.
Accordingly, a need exists for an improved implant retaining
device which is configured to reduce the likelihood of expulsion or
retropulsion of an intervertebral implant from between adjoining
vertebrae during normal patient activity, without inhibiting insertion
of the implant into the intervertebral space.
Based on these two paragraphs, Applicant argues (Br., p. 11):
Morris et al. clearly teaches that formations on the implant, such as
flanges extending from the interbody portion, inhibit insertion of the
implant and are undesirable. To address this problem with prior art
devices, Morris et al. teaches an implant retaining device that forms
no part on the implant in order that insertion of the implant is not
inhibited. Therefore, Morris et al. teaches away from providing any
flanges or other structure extending from an interbody portion of the
implant, and therefore teaches away from its combination with
Michelson where formations that resist backout, including the flanges,
are provided extending from the portion of the implant that is inserted
between the vertebrae.
However, the flanges used in Michelson do not reasonably appear to
inhibit the insertion of the implant into the vertebral space. Michelson’s
flanges follow the body portion of the implant as it is inserted into the
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