Appeal No. 2006-0762 Page 7
Application No. 09/982,113
receptor. See Col. 3, lines 44-66. Ulukaya teaches that 4-HR is a synthetic
retinoid that inhibits the proliferation of cancer cells. As Mehta teaches the use of
retinoids in general for the treatment of cancer, and as Ulukaya teaches that 4-
HR may be used for the same purpose, the ordinary artisan would have been
motivated to use 4-HR as the retinoid in the liposomal retinoids taught by Mehta.
Moreover, one would have been motivated to use a liposome to deliver 4-HR
because, as taught by Mehta, the liposome allows for direct intracellular delivery.
Finally, appellants contend that Example 1 and Table 2 demonstrate that
the encapsulation efficiency achieved by the present inventors “was consistently
very high . . . in direct contrast to the much poorer . . . encapsulation efficiency
achieved without the inclusion of water, which is reflective of the approach taught
by Mehta.” Id. at 7-8
First, the encapsulation efficiencies taught in Table 2 as exemplifying the
claimed invention range from 77.5% to 96.4%, and Mehta teaches they obtain an
encapsulation efficiency of greater than 90%. See Col. 8, lines 15-18. Thus, the
results demonstrated in Table 2 do not appear to be unexpected.
In addition, claims 139 and 140 state “wherein the composition comprises
from 1 to 10% water” (claims 139) and “wherein the composition comprises about
10% water” (claim 140). Thus, claims 139 and 140 do not limit the amount of
water in the lipid material, but read on the amount of water in the entire
composition.
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