Appeal No. 2007-0054
Application No. 08/846,722
compositions obvious.” (Answer 7.) Katz describes pyruvate as an
inflammatory mediator. (Col. 7, ll. 21-23.) The Examiner argues that
“Picciano teaches the treatment of sinusitis with an isotonic buffered nasal
saline solution comprising water, sodium chloride, 0.65% by weight, iodine,
buffer and a preservative (col. 4, lines 52-59). . . . The solution is taught to
alleviate congestion and to provide moisturization.” (Answer 6-7.) The
Examiner argues that the skilled artisan would have been motivated to
include the inflammatory mediator (i.e., pyruvate) in the solution of Picciano
to provide congestion relief and nasal moisturization, as well as reduce the
inflammatory response, in patients suffering from sinusitis. (Answer 7.) We
conclude that the Examiner has set forth a prima facie case that claim 27
would have been obvious.
Appellants argue that the combination of Katz and Amschler does not
provide a “method for treating a disease state in mammals caused by
mammalian nasal and sinus cells involved in the inflammatory response”
and that Picciano does not overcome this deficiency. (Br. 12-13.) However,
as discussed above, we conclude that one of ordinary skill in the art would
have been motivated by the teachings of Katz and Amschler to treat disease
states caused by inflammation of nasal and sinus cells, such as rhinitis and
sinusitis, by contacting the nasal and sinus cells with pyruvate. Thus, we
conclude that Appellants have not rebutted the Examiner’s prima facie case
that claim 27 would have been obvious. We therefore affirm the rejection of
claim 27 under 35 U.S.C. § 103. Claims 28-30 fall with claim 27.
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