Appeal 2007-2643
Application 10/165,805
device are associated with the load cell to transmit information about a
measured force of the first portion toward the second portion away from the
load cell (Yen, col. 1, l. 64 - col. 2, l. 3).
The bulk of Appellant’s arguments focus on the intended use of the
claimed invention. Appellant asserts that Yen’s device is not an implant (Br.
10) and that it would make “no sense to even try to use the Yen device on a
patient . . .” (Br. 12). However, as discussed above, the intended use of the
claimed device is not a limitation on the device itself. Accordingly, we are
not persuaded by Appellant’s argument.
Appellant asserts that Yen’s device does not have an implant shape
(see, e.g., Br. 10). Appellant asserts that “the term ‘implant shape’ is an
unmistakable affirmative limitation as to the shape of the device” (Br. 15).
According to Appellant the term “implant shape . . . includes the shape of
anything which you would implant and leave in the body” e.g., from “an
aspirin shape” to a shape that “is more curved on one side than the other, to
one which has a thicker connection area at one edge than the other (quasi-
slope shaped)” (Br. 15). There is, however, no requirement in claim 1 that
the device have a specific “implant” shape. Claim 1 requires only that the
device is configured to “form an intervertebral implant shape having
opposing load distribution surfaces shaped for substantially even contact of
adjacent vertebra above and below an intervertebral space” (Appellant’s
claim 1).
Nevertheless, despite Appellant’s assertions to the contrary, Appellant
recognizes that Yen’s device can be inserted into the spine of a mammal
(Reply Br. 2). In this regard, we note that Yen’s device has an implant size
and shape (Yen, col. 1, ll. 47-48; col. 3, ll. 26-30). Yen expressly teaches
5
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: September 9, 2013