Appeal 2007-3762
Application 10/422,282
attached. Therefore, if element 1 articulates with respect to element 2,
element 1 will necessarily articulate with respect to the vertebral base plate
to which element 2 is attached. The same is true of element 2 and the
vertebral base plate to which element 1 is attached. Stated differently,
Büttner-Janz’s device is configured to articulate with respect to at least one
vertebral endplate. Therefore, we disagree with Appellant’s assertion that
Büttner-Janz’s components do not articulate with respect to at least one
vertebral endplate (Br. 4).
The burden is on the Examiner to set forth a prima facie case of
unpatentability. In re Glaug, 283 F.3d 1335, 1338, 62 USPQ2d 1151, 1152
(Fed. Cir. 2002). To anticipate, every element and limitation of the claimed
invention must be found in a single prior art reference, arranged as in the
claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383, 58
USPQ2d 1286, 1291 (Fed. Cir. 2001). For the foregoing reasons we find no
error in the Examiner’s prima facie case of anticipation. Accordingly, we
affirm the rejection of claim 1 under 35 U.S.C. § 102(b) as being anticipated
by Büttner-Janz. Claims 2 and 5-8 fall together with claim 1.
Claim 10:
Claim 10 depends from and further limits the disc spacer of claim 1,
wherein the device is adapted to articulate with an upper and a lower
vertebral endplate. The Examiner relies on Büttner-Janz as discussed above.
Appellant asserts that Büttner-Janz’s device is not “adapted to articulate with
an upper and a lower vertebral endplate” (Br. 4).
As discussed above, if element 1 articulates with respect to element 2,
element 1 will necessarily articulate with respect to the vertebral base plate
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