Appeal No. 2005-1738 Page 6
Application No. 10/046,897
transcutaneous. It means ‘through the skin’[.] Examples of transdermal
administration would be by syringe injection or the use of a medicated patch.”
For the examiner to disregard that evidence on the conclusory basis that “[t]he
appellant is reading more into the reference than is taught by the reference,”
Examiner’s Answer, page 6, and as “conjecture,” id. at 7, is incorrect. The
examiner provides no countervailing evidence, such as evidence that a person
fluent in both Japanese and English would read “transdermal” in the way that the
examiner asserts it should be read, to support her position. For that reason, and
the reasons set forth above, we are compelled to reverse the rejection.
Claims 1-8 stand rejected under 35 U.S.C. § 103(a) as being obvious over
the combination of Owades and Shibata.
Owades is cited for teaching the use of a topical aqueous hops extract to
inhibit the growth of S. aureus. Examiner’s Answer, page 4. The examiner
acknowledges that Owades “does not specifically teach using the hops extract to
sanitize the teats and udders of cows.” Id. Shibata is cited for teaching that S.
aureus is the causative agent of bovine mastitis.
The rejection concludes:
Therefore, since the hops extract of [Owades] is taught to be
topically active against S. aureus, a person of ordinary skill in the
art would reasonably expect that the extract of [Owades] would be
useful in sanitizing the teats and udders of cows. Thus, based on
the teachings of the reference, a person of ordinary skill in the art
would be motivated to use the hops extract of [Owades] to sanitize
the teats and udders of cows.
[Owades] and [Shibata] taken together teach using a topical
hops composition to sanitize the teats and udders of cows. The
references do not specifically teach washing or dipping the teats
and udders to apply the compositions. However, applying this
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