Appeal No. 2001-1907 Page 9
Application No. 08/694,315
Appellants argue that “[n]one of the references disclose any . . . activity of
histamine-activated immunoglobulin that is virtually histamine free, nor could it
have been expected from the disclosure of any of the references, alone or in
combination. We agree.
The burden is on the examiner to make a prima facie case of
obviousness, and the examiner may meet this burden by demonstrating that the
prior art would lead the ordinary artisan to combine the relevant teachings of the
references to arrive at the claimed invention. See In re Fine, 837 F.2d 1071,
1074, 5 USPQ2d 1596, 1598-99 (Fed. Cir. 1988). The findings of fact underlying
the obviousness rejection, as well as the conclusions of law, must be made in
accordance with the Administrative Procedure Act, 5 U.S.C. 706 (A), (E) (1994).
See Zurko v. Dickinson, 527 U.S. 150, 158, 119 S.Ct. 1816, 1821, 50 USPQ2d
1930, 1934 (1999). Findings of fact underlying the obviousness rejection, upon
review by the Court of Appeals for the Federal Circuit, must be supported by
substantial evidence within the record. See In re Gartside, 203 F.3d 1305, 1315,
53 USPQ2d 1769, 1775 (Fed. Cir. 2000). In addition, in order for meaningful
appellate review to occur, the examiner must present a full and reasoned
explanation of the rejection. See, e.g., In re Lee, 277 F.3d 1338, 1342, 61
USPQ2d 1430, 1432 (Fed. Cir. 2002). The obviousness rejection and the
obviousness-type double-patenting rejection of record do not meet the above
criteria.
The claims are drawn to activated immunoglobulin in which the histamine
is removed from the mixture, wherein the amount of histamine after its removal is
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