Appeal No. 2005-1738 Page 5
Application No. 10/046,897
The examiner relies on paragraph 46 of Shibata, which teaches that “[t]he
method of giving it is either oral or non-oral administration. As non-oral
administration, intramuscular, intra stomach, transdermal, nasal and vein
administration can be used.” The examiner asserts that
[t]he reference as translated states that the hops extract can be
applied transdermally or to the skin to treat a pathogenic
Staphylococcus aureus infection. The reference as translated does
not specify that the transdermal administration is performed using a
medicated patch or a syringe. In addition, a person of any degree
of skill in the pharmaceutical art would appreciate that syringe
injection is not transdermal administration. Transdermal
administration means that the active substance is absorbed through
the skin. Syringe injection pierces the skin; thus it is not
administration through the skin. Thus, the appellants conjecture
regarding the teaching of the reference to administer by injection or
medicated patch is outside any suggestion of the reference’s
teaching of transdermal administration.
Examiner’s Answer, pages 6-7 (emphasis in original).
The examiner, however, is ignoring paragraph 45, the paragraph directly
before the relied upon paragraph, which states “[t]he amount to be administered
varies in a range from 0.001 mg/body weight kg/day ~ 100 g/body weight kg/day
in the original weight of galenicals. An amount of an agent for prevention is
different from that of the agent for treatment, and generally the amount to be
administered is larger for the latter.” Thus, that paragraph would not suggest to
the ordinary artisan that the galenical is to be used to wash the teat or udder to
prevent mastitis.
Finally, the examiner is not giving any weight to the Translation Certificate,
attached as Exhibit B to the Appeal Brief, wherein the translator declares, under
the penalty of perjury, that “[t]he word, transdermal, is used Interchangeably with
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007