Appeal No. 2005-1738 Page 7
Application No. 10/046,897
active solution to the infected site would clearly involve washing or
dipping as an obvious means for applying a transdermally active
substance.
Id. at 4-5.
Appellant argues that Owades does not make up for the deficiencies of
Shibata. See Appeal Brief, page 7. Owades, appellant contends, relates to the
use of a hops extract in the preparation of deodorants for humans to inhibit the
growth of S. aureus, and thus is non-analogous art. See id. Again, we agree,
and the rejection is reversed.
The examiner asserts that the references are analogous, as they both
Owades and Shibata deal with topical control of S. aureus. See Examiner’s
Answer, page 9. As noted above, however, Shibata does not relate to topical
control of S. aureus, and we find that one of ordinary skill in the art interested in
treating bovine mastitis, would not look to the deodorant art for a solution. See In
re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA 1979)(noting that in
determining whether a reference is non-analogous art, first decide whether the
reference is in the inventor’s field on endeavor, and if not, determine whether the
reference is reasonably pertinent to the particular problem with which the
inventor was involved).
Claims 1-7 stand rejected under 35 U.S.C. § 103(a) as being obvious over
the combination of Barney with Shibata.
Barney is cited for teaching that “various hops acids have topical
antibacterial activity,” and that “tetrahydroisohumulone and other iso forms of
humulone and lupulone function against S. aureus.” Examiner’s Answer, page 5.
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