Appeal No. 2005-0126
Application No. 09/967,791
ocular, oral, otic rectal, vaginal, or upper respiratory mucosa, or through the skin or
lungs. Specification pages 4-5.
35 U.S.C. §103(a)
Claims 1-10 and 12-28 stand rejected under 35 U.S.C. §103(a), as obvious in
view of Naito and Keep.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). It is well-established that the
conclusion that the claimed subject matter is prima facie obvious must be supported by
evidence, as shown by some objective teaching in the prior art or by knowledge
generally available to one of ordinary skill in the art that would have led that individual 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 (Fed. Cir. 1988).
According to the examiner, “Naito teaches ingesting substances with a
combination of sugar and amino acid [hypertonic sugar composition] so that they
coexist in the blood stream and result in the facilitation of the use of the added material
by the body... The sugar/amino acid combination provides a vehicle and method for
transporting substances across the blood-brain barrier (column 2, lines 2-4).” Answer,
page 5. Naito exemplifies the administration of beta-carotene or xanthophylls with the
sugar composition and indicates this composition has the effect of increasing the growth
of hair and replacing grayness with original hair color. Id. Naito also teaches that any
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