Ex Parte Lange et al

Board of Patent Appeals and Interferences

May 15, 2012

11261386 (B.P.A.I. May. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ERIC C. LANGE, JONATHAN DEWEY,
KENT M. ANDERSON, THOMAS CARLS, FRED J. MOLZ IV,
MATTHEW M. MORRISON, and AURELIEN BRUNEAU
__________

Appeal 2011-001362
Application 11/261,386
Technology Center 3700
__________

Before TONI R. SCHEINER, ERIC GRIMES, and ERICA A. FRANKLIN,
Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
prosthetic device for insertion between two vertebrae of a vertebral column.
The Patent Examiner rejected the claims as anticipated. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.

Appeal 2011-001362
Application 11/261,386

2
STATEMENT OF THE CASE
Claims 10, 11 and 25 are on appeal. Claim 10 is the only independent
claim and reads as follows:
10. A prosthetic device for insertion between two vertebrae of a vertebral
column to stabilize same, the device comprising:
a first spacer having a curved slot in a first end sized to receive and to
extend on either side of a spinous process of one of the vertebrae;
a second spacer having a curved slot in a second end sized to receive
and to extend on either side of a spinous process of the other of the
vertebrae;
a mechanism for connecting the spacers, the mechanism having a
variable length extending in a direction that defines a distance
between the spacers, the mechanism being configured in a manner
to permit sliding relative movement between the spacers so that the
distance between the spacers can vary;
wherein the connecting mechanism comprises:
a first flange affixed to the first spacer and extending from the first
spacer toward the second spacer;
a second flange affixed to the second spacer and extending from
the second spacer toward the first spacer; the second flange
having a series of teeth thereon oriented toward the first flange;
a control element disposed between the first and second flanges;
the control element engaging at least one of the teeth and
operative to control the relative positions of the first and second
flanges in said direction.

The Examiner rejected claims 10, 11, and 25 under 35 U.S.C. §102(b)
as anticipated by Zucherman.
1
The Examiner found that Zucherman‟s
Figure 149a disclosed a first flange 2810 and second flange 2814, the second
flange 2814 having a series of teeth 2880 thereon oriented toward the first

1
Patent No. US 6,451,019 issued to James F. Zucherman et al., Sep. 17,
2002.
Appeal 2011-001362
Application 11/261,386

3
flange. (Ans. 4, 7.) The Examiner annotated Zucherman‟s Figure 149a, as
reproduced below:

(Ans. 7.) Zucherman Figure 149a depicts a perspective view of a
mechanism of an embodiment of the invention for adjusting the position of
hook mechanisms of the invention. (Zucherman col. 6, ll. 64-67.)
According to the Examiner, teeth 2880 “are elongated in the direction of the
first flange and also capture the first flange (col. 40, lines 23-29) and are
thus „oriented towards‟ the first flange.” (Ans. 6.)
We disagree, as Zucherman Figure 149a shows the teeth of element
2880 oriented outward rather than upward toward first flange 2810.
The Examiner additionally interpreted Zucherman Figures 147a and
147b as disclosing a first flange 2610 and second flange 2624, the second
flange 2624 having a series of teeth 2662, 2660 thereon oriented toward the
first flange. (Ans. 4-5.) Zucherman‟s Figures 147a and 147b are
reproduced below:
Appeal 2011-001362
Application 11/261,386

4

Zucherman Figures 147a and 147b are side and top views of an embodiment
of the invention depicting a mechanism for adjusting the positions of hook
mechanisms. (Zucherman col. 6, ll. 56-60.)
We agree with Appellants that Zucherman‟s Figure 147b does not
show teeth 2662 on the second flange 2624. (App. Br. 8.) Additionally, we
agree with Appellants that Zucherman‟s Figure 147b does not show teeth
2660 oriented toward the first flange 2610. (Id. at 9.) Therefore, we do not
find that the Examiner has established that Zucherman disclosed each
claimed element. See Verdegaal Bros. v. Union Oil Co. of California, 814
F.2d 628, 631 (Fed. Cir. 1987)(“A claim is anticipated only if each and
every element as set forth in the claim is found, either expressly or
inherently described, in a single prior art reference.”). Accordingly, we
reverse the Examiner‟s anticipation rejection.

REVERSED

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