Appeal No. 98-2247 6
Application No. 08/108,822
other ground, of presenting a prima facie case of unpatentability,” whether on the
grounds of anticipation or obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). On the record before us, the examiner relies
upon four separate rejections to establish a prima facie case of obviousness. Each of the
four rejections however, are directed to a single premise. It is the position of the
examiner that, “it would have been obvious at the time the applicants’ invention was
made to use one of the stated salts shown to be old by Klein (abstract; Ex’s 1 - 4) in lieu
of, or in addition to, the phospholipids in the methods of Ostro to produce steroidal
liposomes.” See Answer, pages 5 and 6. We disagree.
The examiner has relied upon Ostro as the primary reference in each of the
rejections under Section 103. Ostro discloses a plurality of methods for the preparation
2
of liposomes. See pages 33 to 39. The methods include preparing the liposomes either
in the presence of organic solvent or in the absence of organic solvent. We find that the
preparation of small unilamellar vesicles occurs in the absence of organic solvent. See
page 33. Similarly, we find that multilamellar vesicles are prepared in the absence of
organic solvent. See page 36 and 37. Alternately organic solvent may be present during
the formation of vesicles. See pages 38 and 39.
Ostro however, is silent as to which lipids may be used to form liposome vesicles.
2 A liposome is defined as an artificial vesicle composed of one or more concentric phospholipid
bilayers. See Webster's Ninth New Collegiate Dictionary, page 696, Merriam-Webster Inc. Springfield, MA
1986.
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