Appeal 2007-2643
Application 10/165,805
Claim 27 differs from claim 1 in two respects. First, claim 27 requires
that at least a part of the first and second portions of the device form an
intervertebral implant shape. Second, claim 27 requires that a load cell be
mounted on at least one of the first and second portions.
The Examiner relies on Yen as discussed above. From the foregoing
discussion, it is clear that Yen teaches a device, wherein: (1) at least a part of
the first and second portions form an intervertebral implant shape (Yen, col.
1, ll. 47-48; col. 3, ll. 26-30); (2) the device can be inserted into the
intervertebral space (Yen, col. 1, ll. 55-56); and (3) a load cell is mounted on
at least one of the first and second portions (Yen, col. 1, l. 64 – col. 2, l. 3).
In response Appellant states
Claim 27 also includes the term “intervertebral implant
shape” as well as the terms “substantially even contact of
adjacent vertebra”. The term “shaped for even contact” should
not be interpreted as “poor but equal” contact, but contact
evenly over the surface, with implant shape indicating a contact
at least as good or over an area as good as the poorest object
which would be implantably left in the body. Than this
minimum, it is even better to have a shape matching the implant
to be implanted. This full range is contemplated by the use of
this language with the claims.
(Br. 16.) We are not persuaded by Appellant’s argument. As discussed
above, Yen teaches a device for insertion between two segments of a
patient’s spine (Yen, col. 1, ll. 55-56). There is no evidence on this record
that the shape of Yen’s device will not provide for substantially even contact
of adjacent vertebrae above and below an intervertebral space, when inserted
into the intervertebral space.
On reflection we find no error in the Examiner’s prima facie case of
anticipation. For the foregoing reasons, we are not persuaded by Appellant’s
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