Ex Parte Bouduban et al

Patent Trial and Appeal Board

Oct 11, 2017

14446322 (P.T.A.B. Oct. 11, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
10139/27612 7523
EXAMINER
HARVEY, JULIANNA NANCY
ART UNIT PAPER NUMBER
3733
MAIL DATE DELIVERY MODE
14/446,322 07/29/2014
76960 7590
Fay Kaplun & Marcin, LLP
150 Broadway, suite 702
New York, NY 10038
Nicolas BOUDUBAN
10/11/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICOLAS BOUDUBAN,
PATRICK BURKI, and RETO NARDINI
(APPLICANTS: DePUY SYNTHES PRODUCTS, LLC)
Appeal 2016-007306
Application 14/446,3221
Technology Center 3700
Before DONALD E. ADAMS, JEFFREY N. FREDMAN, and
RYAN H. FLAX, Administrative Patent Judges.
ADAMS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims 1—21 (App. Br.
1). Examiner entered rejections under 35 U.S.C. § 102(b) and 35 U.S.C.
§ 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as “DePuy Synthes Products,
Inc.[, wherein] Johnson & Johnson, Inc. is the parent corporation of DePuy
Synthes Products, Inc.” (App. Br. 2.)
Appeal 2016-007306
Application 14/446,322
STATEMENT OF THE CASE
Appellants’ disclosure “relates to a system for treating bone fractures
and in particular, a system for providing locking of intramedullary nails”
(Spec. 15). Claims 1 and 12 are representative and reproduced below:
1. A system for locking an intramedullary nail to a bone,
comprising:
a first plate sized and shaped to be inserted through a
channel of an intramedullary nail and dimensioned to prevent
its passing through a locking hole of the intramedullary nail;
a second plate sized and shaped to be positioned along a
portion of an exterior of a hole drilled in the bone and
dimensioned to prevent its passing through the hole drilled in
the bone;
and
a connector couplable to the first and second plates and
slidable through the channel of the intramedullary nail to extend
through the locking hole from an interior of the channel to an
exterior of a bone in which the intramedullary nail has been
inserted.
(App. Br. 15.)
12. A system for treating a bone, comprising:
an intramedullary nail extending from a proximal end to
a distal end, the nail including a channel extending therethrough
and a locking hole extending laterally therethrough from an
interior of the channel to an exterior thereof;
a first plate sized and shaped to be inserted through the
channel but prevented from passing through the locking hole,
the first plate including a first opening and a second opening
extending therethrough;
a connector coupled to the first plate and slidable through
the channel of the intramedullary nail to extend through the
locking hole from an interior of the channel to an exterior of a
bone in which the intramedullary nail has been inserted such
that the first plate, when in an operative configuration, is
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Application 14/446,322
positioned along a portion of the interior of the channel
surrounding the locking hole; and
a second plate sized and shaped to be positioned along a
portion of an exterior of a hole drilled in the bone in alignment
with the locking hole, the second plate including a coupling
element to which the connector is couplable to fix the first and
second plates to one another.
(Id. at 17.)
The claims stand rejected as follows:
Claims 1—5 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Bonutti.2
Claims 1 and 9—11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Spievack3 and Bonutti.
Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Bonutti and Spievack.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Bonutti, Spievack, and Sherman.4
Claims 12—14 and 16—20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Spievack and Bonutti.
Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Spievack, Bonutti, and Tanguy.5
Claim 21 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Spievack, Bonutti, and Sherman.
2 Bonutti, US 6,045,551, issued Apr. 4, 2000.
3 Spievack, US 6,053,918, issued Apr. 25, 2000.
4 Sherman et al., US 2011/0218538 Al, published Sept. 8, 2011.
5 Tanguy, US 4,781,181, issued Nov. 1, 1988.
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Anticipation'.
ISSUE
Does the preponderance of evidence on this record support
Examiner’s finding that Bonutti teaches Appellants’ claimed invention?
FACTUAL FINDINGS (FF)
We adopt Examiner’s findings concerning the scope and content of
the prior art (Ans. 2—3), and provide the following findings for emphasis.
FF 1. Appellants’ Figure 9 is reproduced below:
F IG, 5
Appellants’ “Fig. 9 shows a longitudinal cross-sectional view of a first and
second plates fixing the intramedullary nail to the bone according to
[Appellants’] system” (Spec. 14).
FF 2. Appellants’
system 100 . . . comprises a first plate 102 and a second plate
104 for fixing an intramedullary nail 106 to a bone 112 via a
connector 114 passing through a distal locking hole 108 of the
nail 106. .. . [T]he first plate 102 is positioned outside the bone
while the second plate 104 is within the intramedullary nail
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Application 14/446,322
with the two plates 102, 104 affixed on opposite sides of the
distal locking hole 108 and affixed to one another via the
connector 114 which passes through the distal locking hole 108
and a corresponding hole 122 in the bone 112, to fix the
intramedullary nail 106 at a desired position within the bone
112
(Spec. 16.)
FF 3. Bonutti discloses a “method and apparatus for securing sections of a
fractured bone and/or securing body tissue to bone” (Bonutti 1: 18—19).
FF 4. Bonutti’s Figure 5 is reproduced below:
Bonutti’s “FIG. 5 is a schematic . . . illustrating the manner in which a suture
extends between suture anchors through a nonlinear passage” (Bonutti 2: 6—
8).
FF 5. Bonutti discloses
An anchor[, e.g., 52c,] connected with a suture [38c] is moved
through a passage [40c] between opposite sides of a bone. The
anchor is then pivoted to change its orientation. A second
anchor [50c] is connected with a suture. While tension is
maintained in the suture, the suture is secured against
movement relative to the anchors. . . . The passage may extend
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across a fracture [26c] in the bone [and] may have either a
nonlinear or linear configuration.
(Bonutti, Abstract; see id. at 10: 23—65; see generally Bonutti 4: 6—15 (each
anchor’s dimensions may be adjusted as required by the intended
application.)
ANALYSIS
Examiner finds that the system of Appellants’ claim 1 does not require
an intramedullary nail, but “[i]nstead, . . . merely functionally recite[s] the
nail in order to set forth the intended use of the first and second plates and
connector” (Ans. 12). We agree. The system of Appellants’ claim 1
requires three components: (1) “a first plate sized and shaped to be inserted
through a channel of an intramedullary nail and dimensioned to prevent its
passing through a locking hole of the intramedullary nail” (App. Br. 15); (2)
“a second plate sized and shaped to be positioned along a portion of an
exterior of a hole drilled in the bone and dimensioned to prevent its passing
through the hole drilled in the bone” (id.); and (3) “a connector couplable to
the first and second plates and slidable through the channel of the
intramedullary nail to extend through the locking hole from an interior of the
channel to an exterior of a bone in which the intramedullary nail has been
inserted” (id.).
Examiner finds that Bonutti teaches the system of Appellants’ claim 1
(Ans. 2—3). In this regard, Examiner finds that Bonutti teaches: (1) a first
plate, or anchor, that is sized and shaped to be inserted through a channel, or
fracture, and dimensioned such that, when properly positioned, the anchor
will not pass back through the channel, or fracture; (2) a second plate, or
anchor, that is of a size, shape, and dimension for positioning on the exterior
of a hole in the bone without passing through the hole; and (3) a connector,
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or suture, couplable to the first and second anchors and slidable through the
interior channel of a bone fracture to the exterior of a bone, such that the
first and second anchors are connected by the suture (see FF 4—5; cf. App.
Br. 15). Having disclosed the general size, shape, and dimensions of the
anchors, Bonutti makes clear that each anchor’s dimensions may be adjusted
as required by the intended application (FF 5).
Because the system of Appellants’ claim 1 does not require an
intramedullary nail, we are not persuaded by Appellants’ contention that
“Bonutti fails to show or suggest a system for locking an intramedullary nail
to a bone” and “does not at any point disclose an intramedullary nail of any
kind” (App. Br. 5; see Reply Br. 3).
We are not persuaded by Appellants’ contention that Bonutti “never
discloses any type of plate that is inserted through any channel such that it is
positioned at an interior portion of bone,” but instead discloses that each of
Bonutti’s plate elements “is located along an exterior surface of the bone”
(App. Br. 5; see Reply Br. 4). As discussed above, Bonutti’s anchors are
configured such that at least one anchor passes through a channel and when
properly positioned both anchors will not pass through a hole. Whether: (a)
both anchors are placed on either external surface of a hole passing through
a bone or (b) one anchor is placed on the inside of a intramedullary nail hole
(i.e., on an interior portion of bone) while the other anchor is on the external
surface of a bone hole, absent evidence to the contrary, the first anchor,
second anchor, and connector disclosed by Bonutti meet the structural
requirements of Appellants’ claimed invention. There is no evidence on this
record to support a finding that Bonutti’s first anchor, second anchor, and
connector could not be used in conjunction with an intramedullary nail (see
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FF 3—5; cf. App. Br. 15; Reply Br. 4). Therefore, we are not persuaded by
Appellants’ contentions as they relate to In re Giannelli, 739 F.3d 1375
(Fed. Cir. 2014) (see Reply Br. 5—7).
Appellants’ claim 1 does not define the size or shape of a channel in
an intramedullary nail (see App. Br. 15). Nevertheless, Bonutti discloses
passing an anchor and connector through a bone fracture, wherein the anchor
is sized as necessary for the intended application (see FF 3—5). Therefore,
absent evidence to the contrary, we are not persuaded by Appellants’
contention “that Bonutti does not at any point disclose first and second
plates suitably sized and shaped for use with an intramedullary nail of any
kind” (Reply Br. 3—4).
Bonutti discloses that an anchor may be passed through a passage
extending across a fracture in a bone, wherein the passage may have either a
nonlinear or linear configuration (FF 5). Therefore, we are not persuaded by
Appellants’ contention that Bonutti fails to disclose an anchor, or plate, with
a configuration required by Appellants’ claimed invention, because an
intramedullary nail may be bent “in unforeseen ways as it is inserted into the
bone” (Reply Br. 5; see also id. at 6—7).
CONCLUSION OF LAW
The preponderance of evidence on this record supports Examiner’s
finding that Bonutti teaches Appellants’ claimed invention. The rejection of
claim 1 under 35 U.S.C. § 102(b) as anticipated by Bonutti is affirmed.
Claims 2—5 are not separately argued and fall with claim 1.
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Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
We adopt Examiner’s findings concerning the scope and content of
the prior art (Ans. 6—12), and provide the following findings for emphasis.
FF 6. Spievack discloses “an apparatus, a system and method for fastening
an intramedullary nail to a bone” (Spievack 1: 31—32).
FF 7. Examiner finds that
Spievack discloses a system for treating a bone, comprising: an
intramedullary nail (nail 3) extending from a proximal end to a
distal end, the nail including a channel (channel through which
drill shaft 2 and guide bodies 10a, 10b extend) extending
therethrough and a locking hole (hole 34a or 34b) extending
laterally therethrough from an interior of the channel to an
exterior thereof; and a fastener (screw 6)... .
(Ans. 7—8; see Spievack 2: 53 — 5: 8; see also Spievack 5: 9 — 6: 26.)
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FF 8. Spievack’s Figure 12 is reproduced below:
77s//
ft
Ax d
/ it
3" 310 / Fa 12
/X51./A
i /•'
5 f
/
/
v™, J FIG, 12
v~.x
“FIG. 12 is a perspective view of [a] guide apparatus 200 . . . being inserted
into the intramedullary[] nail 3’” (Spievack 5: 39-41).
FF 9. Examiner finds that while Spievack discloses an intramedullary nail
comprising a channel and a screw to secure the intramedullary nail in an
intramedullary cavity of a bone, Spievack fails to disclose a first plate,
second plate, and connector as required by Appellants’ claimed invention
and relies on Bonutti to make up for this deficiency in Spievack (9-10; see
Spievack 3: 15—18 (an intramedullary nail can be “a thin-walled hollow
tube” or “the [intramedullary] nail or nail tip can include a solid member
with [a] longitudinal aperture bored therein” (reference numbers omitted))).
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FF 10. Spievack’s Figure 5 is reproduced below:
A?
FIG. 5
Spievack’s “FIG. 5 [illustrates] a foreshortened cross sectional schematic
diagram [illustrating a] drill bit 22 [passing through a funnel shaped channel
of guide 10a and] extending through the [patient’s bone 41 and] thigh 45”
(Spievack 3: 59—61; see also id. at 46—50 (“The flexible drill shaft [22] is
guided by the funnel cavity [of guide 10a through securing, or locking, hole
34A] to the bone cortex[, wherein]. . . pilot hole 41 [is] bored through the
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Application 14/446,322
bone cortex [] from the intramedullar[y][] canal using the integrated guide
[10a]”)).
ANALYSIS
The rejection of claim 1 over the combination of Bonutti and Spievack:
For the reasons set forth above, we find that Bonutti anticipates
Appellants’ claim 1. ‘“[AJnticipation is the epitome of obviousness.’”
Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed. Cir. 1983).
Further, the Board may rely upon less than all the references cited by the
Examiner. See In re May, 574 F.2d 1082, 1090 (CCPA 1978); In re Kronig,
539 F.2d 1300, 1304 (CCPA 1976). Therefore, having found no deficiency
in Examiner’s rejection of claim 1 as anticipated by Bonutti, we find no
error in Examiner’s conclusion that Bonutti makes obvious the subject
matter of Appellants’ claim 1.
For the foregoing reasons, we are not persuaded by Appellants’
contentions regarding Spievack or whether Bonutti was properly combined
with Spievack (see App. Br. 9-10; Reply Br. 9-12).
The rejection of claim 6 over the combination of Bonutti and Spievack.
Based on the combination of Spievack and Bonutti, Examiner
concludes that, at the time Appellants’ invention was made, it would have
been prima facie obvious “to modify the drill of Bonutti such that it is
flexible[], as suggested by Spievack, in order to allow it to move along a
non-linear path, thereby eliminating the need to drill a non-linear path from
two ends . . .” (Ans. 5).
Appellants’ direct attention to their arguments relating to the rejection
of claim 1 as obvious over the combination of Spievack and Bonutti (see
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App. Br. 7; see Reply Br. 7—8). As discussed above, we found no deficiency
in the rejection of claim 1. Appellants do not otherwise contest the rejection
of claim 6. Therefore, we are compelled to affirm the rejection of
Appellants’ claim 6.
The rejection of claim 8 over the combination of Bonutti, Spievack, and
Shermam.
Based on the combination of Spievack, Bonutti, and Sherman,
Examiner concludes that, at the time Appellants’ invention was made, it
would have been prima facie obvious to modify the flexible drill suggested
by the combination of Spievack and Bonutti “to comprise one of or [] any
combination of nitinol, gum metal, titanium, sprung steel, magnesium and
PEEK, as suggested by Sherman [], in order to increase flexibility of the
shaft while maintaining sufficient strength for the drill during a drilling
operation” (Ans. 5—6).
Appellants’ direct attention to their arguments relating to the rejection
of claim 1 as obvious over the combination of Spievack and Bonutti (see
App. Br. 8; see Reply Br. 8). As discussed above, we found no deficiency in
the rejection of claim 1. Appellants do not otherwise contest the rejection of
claim 8. Therefore, we are compelled to affirm the rejection of Appellants’
claim 8.
The rejection of claim 12 over the combination of Spievack and Bonutti'.
The system of Appellants’ claim 12 requires four components: (1) “an
intramedullary nail extending from a proximal end to a distal end, the nail
including a channel extending therethrough and a locking hole extending
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Application 14/446,322
laterally therethrough from an interior of the channel to an exterior thereof’
(App. Br. 17); (2) “a first plate sized and shaped to be inserted through the
channel but prevented from passing through the locking hole [of the
intramedullary nail], the first plate including a first opening and a second
opening extending therethrough” (id.); (3) “a connector coupled to the first
plate and slidable through the channel of the intramedullary nail to extend
through the locking hole from an interior of the channel to an exterior of a
bone in which the intramedullary nail has been inserted such that the first
plate, when in an operative configuration, is positioned along a portion of
the interior of the channel surrounding the locking hole” (id.); and (4) “a
second plate sized and shaped to be positioned along a portion of an exterior
of a hole drilled in the bone in alignment with the locking hole, the second
plate including a coupling element to which the connector is couplable to fix
the first and second plates to one another” (id.).
Based on the combination of Spievack and Bonutti, Examiner
concludes that, at the time Appellants’ invention was made, it would have
been prima facie obvious to substitute Bonutti’s first anchor, second anchor,
and connector for Spievack’s screw because Bonutti’s first anchor, second
anchor, and connector “would cause less trauma to the bone” than
Spievack’s screw (Ans. 10-11; see FF 1—5 and 7).
Appellants contend that Spievack and Bonutti fail to suggest the
subject matter of Appellants’ claim 12 for the same reasons as Appellants
assert for Appellants’ claim 1 (App. Br. 11; Reply Br. 12—13). In this
regard, Appellants contend that “while each of [Spievack and Bonutti] is
related to the treatment of bones, they are directed to operations completely
different from each other and very different from the recitation of the
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claims” (App. Br. 9; see id. at 10 (“the problems being solved by the two
references are completely different and Bonutti’s method of connecting two
portions of bone fragments is entirely unrelated to Spievack’s method of
guiding screws to securing holes”)). Stated differently, Appellants’ contend
that Spievack and Bonutti represent non-analogous art. We are not
persuaded.
Two criteria have evolved for determining whether prior
art is analogous: (1) whether the art is from the same field of
endeavor, regardless of the problem addressed, and (2) if the
reference is not within the field of the inventor’s endeavor,
whether the reference still is reasonably pertinent to the
particular problem with which the inventor is involved.
In re Clay, 966 F.2d 656, 658-9 (Fed. Cir. 1992).
As Appellants recognize, Spievack and Bonutti both relate to the
treatment of bones and are, therefore, in the same field of endeavor;
specifically, the treatment of bones (see App. Br. 9; see also Ans. 15).
Further, Spievack discloses the use of a screw to secure two materials, an
intramedullary nail and bone, to each other (see FF 7). Bonutti discloses an
alternative to a screw connector, wherein first and second anchors are used
to secure both sides of bone fracture to each other through the use of a
suture, or connector (see FF 3—5). Thus, we find that a person of ordinary
skill in this art would have found it prima facie obvious to secure to
materials together through the use of a screw, as disclosed by Spievack, or
through the use of a first and second anchor connected through a suture, or
connector, as disclosed by Bonutti. Thus, Spievack and Bonutti are not only
reasonably pertinent to each other, but they are reasonably pertinent to the
particular problem with which Appellants are involved, i.e., securing two
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materials (cf. App. Br. 10 (“[n]o portion of Spievack is directed to holding
fragmented portions of bone together and Spievack never suggests that such
a function is possible, and thus the methods of the references are not
concerned with analogous fields of endeavors, contrary to the Examiner’s
contention”)).
We are not persuaded by Appellants’ contention that
neither of the references either shows or suggests any element
inserted through a channel of an intramedullary nail to couple to
a plate external to the bone within which the nail is implanted.
Thus it is submitted that those skilled in the art would not have
found it obvious to have formed the combination suggested by
the Examiner which requires a complete departure from the
teachings of both references in a manner suggested by neither.
(App. Br. 9; see generally id. at 9-10.) As Examiner explains,
the rejection was based on combining both references, one of
which teaches a nail (Spievack) and the other of which teaches
a plate (Bonutti). If a single reference included both the nail
and the plate, [the] rejection would have been issued under
35U.S.C. § 102 and not 35 U.S.C. § 103(a).
(Ans. 15.) Further, as discussed above, the combination of Spievack and
Bonutti simply provides a first anchor, second anchor, and connector, suture,
as an alternative for Spievack’s screw for use as the means for securing an
intramedullary nail to bone. Therefore, we are not persuaded by Appellants’
assertion that modifying Spievack with Bonutti as suggested by Examiner
“requires a complete departure from the teachings of both references in a
manner suggested by neither” or that Examiner relied upon “impermissible
hindsight reconstruction” in reaching a conclusion of obviousness (App. Br.
9).
Appellants fail to provide a factual foundation to explain why
replacing Spievack’s “screw with the suture system of Bonutti. . . would
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negate the problem that Spievack is trying to solve” or that the use of
Bonutti’s connection system (i.e., a first anchor, second anchor, and suture
connector) “is completely irrelevant and unsuitable to the system of
Spievack” (App. Br. 10). Therefore, we find Appellants’ contentions to
represent attorney argument, which cannot take the place of evidence. In re
Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997).
Spievack discloses that an intramedullary nail can be “a thin-walled
hollow tube” and that components, such as Spievack’s guide apparatus, may
be inserted into the channel of Spievack’s intramedullary nail (FF 8—9).
Therefore, we are not persuaded by Appellants’ contention that “at no point
does Spievack disclose an intramedullary nail channel, only a funnel cavity
specifically sized and shaped to fit a drill bit” (App. Br. 10). Further,
Appellants fail to identify an evidentiary basis on this record to support a
conclusion that a hollow intramedullary nail that comprises a channel that
narrows into a funnel cavity to direct a drill bit, or other elements, such as
Bonutti’s connectors, to a desired location cannot be considered a channel
within the scope of Appellants’ claimed invention (see FF 10).
The rejection of claim 15 over the combination of Spievack, Bonutti, and
Tanguy.
Based on the combination of Spievack, Bonutti, and Tanguy,
Examiner concludes that, at the time Appellants’ invention was made, it
would have been prima facie obvious to modify the central axis of the
locking hole, e.g., securing hole 34A, of the intramedullary nail suggested
by the combination of Spievack and Bonutti to “extend[] at an acute angle
relative to a longitudinal axis of the intramedullary nail, as suggested by
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Tanguy, as such an angle may be desirable depending on the condition of a
particular patient’s bone” (Ans. 11).
For the reasons set forth above, we are not persuaded by Appellants’
contention that the combination of Spievack and Bonutti fail[s] to teach or
disclose the [subject matter] of [Appellants’] claim 12” (App. Br. 12; see
also Reply Br. 13). Having found no deficiency in the combination of
Spievack and Bonutti as it relates to Appellants’ claim 12, we are not
persuaded by Appellants’ contention that “Tanguy does not cure the
[alleged] deficiencies [in the combination] of Spievack and Bonutti” (App.
Br. 12). Appellants do not otherwise contest the rejection of claim 15.
Therefore, we are compelled to affirm the rejection of Appellants’ claim 15.
The rejection of claim 21 over the combination of Spievack, Bonutti, and
Shermam.
Based on the combination of Spievack, Bonutti, and Sherman,
Examiner concludes that, at the time Appellants’ invention was made, it
would have been prima facie obvious to modify the flexible drill suggested
by the combination of Spievack and Bonutti “to comprise one of or [] any
combination of nitinol, gum metal, titanium, sprung steel, magnesium and
PEEK, as suggested by Sherman[], in order to increase flexibility of the
shaft while maintaining sufficient strength for the drill during a drilling
operation” (Ans. 12).
For the reasons set forth above, we are not persuaded by Appellants’
contention that the combination of “Spievack and Bonutti fail[s] to teach or
disclose the [subject matter] of [Appellants’] claim 12” (App. Br. 13; see
also Reply Br. 14). Having found no deficiency in the combination of
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Spievack and Bonutti as it relates to Appellants’ claim 12, we are not
persuaded by Appellants’ contention that “Sherman does not cure the
[alleged] deficiencies [in the combination] of Spievack and Bonutti” (App.
Br. 13). Appellants do not otherwise contest the rejection of claim 21.
Therefore, we are compelled to affirm the rejection of Appellants’ claim 21.
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness.
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Spievack and Bonutti is affirmed. Claims 9—11 are
not separately argued and fall with claim 1.
The rejection of claim 6 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Bonutti and Spievack is affirmed. Claim 7 was not
separately argued and falls with claim 6.
The rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Bonutti, Spievack, and Sherman is affirmed.
The rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Spievack and Bonutti is affirmed. Claims 13, 14,
and 16—20 are not separately argued and fall with claim 12.
The rejection of claim 15 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Spievack, Bonutti, and Tanguy is affirmed.
The rejection of claim 21 under 35 U.S.C. § 103(a) as unpatentable
over the combination of Spievack, Bonutti, and Sherman is affirmed.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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