Appeal No. 1996-1783
Application No. 08/195,025
The examiner has failed to show that the artisan would
have considered the teachings of Gaonkar to solve the
stabilization problems disclosed by Tin or Popescu. The 4
examiner rebutted appellants’ argument regarding the
applicability of Gaonkar by stating that “mixing of an
amphiphilic compound with an aqueous phase can only result in
either micellar or liposomal (vesicular) types of
compositions.” (Answer, paragraph bridging pages 7-8, noting
Ex. 8 of Gaonkar). However, appellants have challenged this
statement by the examiner and provided reasons why this
statement is not necessarily correct (Reply Brief, pages 4-5).
Accordingly, the burden has been shifted to the examiner and
the examiner has not replied to this countervailing argument
(see the Letter dated Mar. 13, 1996, Paper No. 17). See In re
Ahlert, 424 F.2d 1088, 1091-92, 165 USPQ 418, 420-21 (CCPA
1970). For the foregoing reasons, the
examiner has failed to establish a prima facie case of
obviousness. Therefore we need not reach the issue of the
4On this record, the examiner does not allege that the
primary references disclose or suggest any stabilization
problem or solution involved with vesicle storage.
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