Ex Parte Lyren

Board of Patent Appeals and Interferences

Jun 14, 2011

11358375 (B.P.A.I. Jun. 14, 2011)

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.
11/358,375 02/21/2006 Philip S. Lyren PSL-002 (CON) 7720
64021 7590 06/15/2011
PHILIP S. LYREN, PC
2515 WILLOWBY DRIVE
HOUSTON, TX 77008
EXAMINER
LEWIS, RALPH A
ART UNIT PAPER NUMBER
3732
MAIL DATE DELIVERY MODE
06/15/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte PHILIP S. LYREN
____________________

Appeal 2009-012304
Application 11/358,375
Technology Center 3700
____________________

Before: JENNIFER D. BAHR, LINDA E. HORNER, and ANTON W.
FETTING, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF CASE
Philip S. Lyren (Appellant) appeals under 35 U.S.C. § 134 from the
Examiner’s rejections under 35 U.S.C. § 103(a) of claims 21-26, 28-31, 33-
35, 37, and 38 as being unpatentable over Gjunter (WO 02/34155 A1, pub.
May 2, 2002) and Kawahara (US 4,957,819, iss. Sep. 18, 1990); and of
claims 27, 32, 36, 39, and 40 as being unpatentable over Gjunter, Kawahara,
and Wagner (US 5,989,027, iss. Nov. 23, 1999). The Examiner has
withdrawn claims 41 and 42 from consideration. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.
The Invention
The claims are directed to a dental implant having a porous body.
Claim 21, reproduced below, is illustrative of the claimed subject matter:
21. A dental implant, comprising:
a coronal body formed of solid metal and connectable to
a dental component; and
a bone fixation body connected to the coronal body and
having a porous metal structure that continuously extends
through an entire cross-sectional view of the bone fixation body
and includes a center of the body in the cross-sectional view.

OPINION
Claim 21 calls for a dental implant comprising a bone fixation body
“having a porous metal structure that continuously extends through an entire
cross-sectional view of the bone fixation body and includes a center of the
body in the cross-sectional view.”
Claim 28 calls for a dental implant comprising an elongated body
“having a metallic porous structure that continuously extends, in a cross-
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sectional view of the body,” from a first outer surface to an opposite second
outer surface of the body, “wherein the metallic porous structure portion
completely fills interior and central portions of the body in the cross-
sectional view.”
Claim 34 calls for a dental implant comprising a body “having
interconnected metallic pores that continuously extend, in a cross-sectional
view of the body,” from a first surface of the body to a second surface of the
body opposite the first surface, “wherein the interconnected metallic pores
induce bone growth through the internal portion and through a center of the
body in the cross-sectional view.”
At issue in this appeal is whether Gjunter in combination with
Kawahara, or in combination with Kawahara and Wagner, would have
rendered obvious a dental implant having the features of claims 21, 28, and
34 discussed above.
With respect to Gjunter, we find:
1. Gjunter describes a dental implant comprising a unitary member of
permeable porous TiNi alloy and a supporting head. Gjunter 2:24-
27.
2. Gjunter teaches that, in a preferred embodiment, the unitary
permeable porous member is reinforced along its length with at
least one wire, preferably a single wire, made of dense TiNi alloy.
Gjunter 3:15-19. The Examiner and Appellant appear to be in
agreement that the reinforcement wire is not porous.
3. Gjunter teaches that the at least one wire provides “[l]ongitudinal
reinforcement along the entire length of the implant” which
“strengthens the implant and performs the function of the solid
core in the known devices.” Gjunter 6:17-19. Gjunter’s wire,
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unlike the solid core of the known devices, occupies less space,
thereby leaving more space for the porous material which
promotes osseointegration. Gjunter 6:19-22. Gjunter teaches that
this preferred construction (with the reinforcing wire) exhibits
sufficient mechanical durability “for the extended and full-value
functioning of the implant.” Gjunter 6:22-24.
4. Gjunter teaches a diameter for the reinforcing wire 2 of 100
microns. Gjunter 8:19. Gjunter describes pore size distributions
for the porous material wherein as many as 70% or greater of the
pores are 100 microns or greater in size. Gjunter 4:9-26.
The Examiner asserts two different positions as to how Gjunter
satisfies or renders obvious the limitations of independent claims 21, 28, and
34 discussed above. The Examiner’s first position is that the presence of the
100 micron wire in Gjunter’s implant has no measurable effect on the
porosity of the implant, and that the center of the implant is in fact porous,
because Gjunter’s reinforcing wire is smaller than most of the disclosed
pores (both of Gjunter and Appellant). Ans. 5. The Examiner’s second
articulated position is that, to the extent that Gjunter’s reinforcing wire
precludes Gjunter’s implant from satisfying the claim limitations at issue,
“one of ordinary skill in the art would have readily recognized the
obviousness of eliminating the wire from the implant.” Id. The Examiner’s
basis for this conclusion is that “[t]he elimination of an element from a prior
art device followed by the subsequent loss of that element’s function has
long been considered obvious to the ordinarily skilled artisan.” Id. (citations
omitted).
The Examiner does not rely on Kawahara for any teaching directed to
the porous structure of the dental implant extending continuously through a
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cross-section of the body including the center of the body, as called for in
claims 21 and 34, or completely filling interior and central portions of the
body in a cross-sectional view from a first outer surface to an opposite
second outer surface of the body, as called for in claim 28.
We agree with Appellant that the Examiner’s first position is
untenable. See App. Br. 12. The presence of a non-porous body (Gjunter’s
reinforcing wire) extending along the entire length of the unitary body, in a
central portion of the body, precludes the porous structure of the unitary
body from extending continuously through an entire cross-section and
including a center of the body, as called for in claim 21. Likewise, because
the non-porous reinforcing wire interrupts the porous portion, Gjunter’s
unitary body does not completely fill interior and central portions of a cross-
sectional view from a first outer surface to an opposite second outer surface,
as called for in claim 28. Additionally, the non-porous reinforcing wire will
interrupt any interconnected metallic pores that would otherwise extend
through the center of the body, and prevent bone growth through a center of
the body in a cross-sectional view of the body, thus failing to satisfy the
limitations at issue in claim 34. The fact that Gjunter’s reinforcing wire may
be smaller than many, even most, of the pores of the porous body does not
alter the fact that the non-porous wire body interrupts the porous structure of
the unitary body.
As for the Examiner’s second position (that it would have been
obvious to eliminate the reinforcing wire in Gjunter, along with its
reinforcing function), we agree with Appellant that Gjunter suggests that the
reinforcing wire is necessary to provide the desired durability. See finding 3
above; App. Br. 13. Further, the Examiner has not articulated any reason
why a person of ordinary skill in the art would have been prompted to
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eliminate the reinforcing wire and its function.1 The Examiner asserts,
without any evidentiary support, that “the Gjunter implant is capable of use
as an implant without the reinforcing wire (it is just not as durable).” Ans.
8-9. Even assuming that the Examiner’s assertion is correct, this still does
not point to an apparent reason why a person of ordinary skill in the art
would have been prompted to modify Gjunter’s implant to render it less
durable.
For the above reasons, we conclude that the Examiner has not
established a prima facie case that the subject matter of independent claims
21, 28, and 34, or of the claims depending therefrom, would have been
obvious. We do not sustain either of the rejections.

DECISION
The Examiner’s decision is reversed.

REVERSED

1 Rejections on obviousness grounds must be supported by “some articulated
reasoning with some rational underpinning” to combine the known elements
in the manner required in the claim at issue. In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006), cited with approval in KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007).
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