Appeal No. 2001-1245
Application 08/430,661
We again remind the examiner that obviousness must be based upon facts not
generalities. The examiner has not explained what facts appear in Fukushima or
knowledge generally known to one of ordinary skill in the art which would reasonably
lead one to conclude that the sequence of steps described in Fukushima may be altered
to arrive at the subject matter of claim 77 on appeal.
For these reasons, the examiner's rejection as based on Fukushima alone is
reversed.
Considering Fukushima in light of Moro or Heyne does not aid the examiner's
case. From the statement of the rejection, we believe the examiner is under the
impression that Moro and Heyne describe the sequence of steps required by the claim
77 on appeal. If that is the examiner's position, we do not find that it is supported by
either reference. First, Moro and Heyne are directed to forming liposomes, not drug-
lipid complexes as required by claim 77 on appeal. Thus, the relevance of these
references in considering the obviousness of the subject matter of claim 77 is subject to
question.
Turning to Moro, we find that it describes a method for forming liposomes in
which an aqueous solution of the drug is added to a solvent solution of the lipidic
component. See, e.g., page 1, lines 86-95. Claim 77 requires preparation of separate
solvent solutions of the lipid and polyene antifungal agent which are subsequently
combined. Thus, even apart from being directed to a method for forming liposomes, the
method described by Moro is further removed from what is required by claim 77 and in
our view presents no reason, suggestion or motivation to modify the procedure specified
in Fukushima in the manner required by claim 77 on appeal.
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