Appeal 2007-0913
Application 09/888,126
merely in degree from the results of the prior art.” In re Huang, 100 F.3d
135, 139, 40 USPQ2d 1685, 1688 (Fed. Cir. 1996) (quoting In re Aller, 220
F.2d 454, 456, 105 USPQ 233, 235 (1955), and citing In re Woodruff, 919
F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir. 1990)).
ANALYSIS
As to the prima facie case of obviousness, Appellants do not contest it
in the Brief,3 thus, for the purposes of this Appeal, we conclude that
Appellants concede that the Examiner has met the burden of establishing a
prima facie case of obviousness.
We find that Appellants have not demonstrated that the formulation of
claim 1 has unexpected properties so as to rebut the prima facie case of
obviousness, and the rejection is affirmed.
Focusing of Figure 2, it is unclear what is unexpected. First,
Appellants asserted at oral argument that the Figure demonstrates that the
insulin and the DPPC of the Formulation of claim1 interact with one
another. However, Appellants have not presented any evidence that such
interaction would be unexpected.
For example, Edwards teaches particles incorporating a surfactant
and/or a hydrophilic or hydrophobic complex of a positively charged or
3 Appellants state in the Reply Brief at page 2 that they have not admitted,
either explicitly or inferentially, that the Examiner has established a prima
facie case of obviousness. But as they do not point to any arguments made
in the Appeal Brief attacking the prima facie case, and also do not present
any argument as to why the Examiner failed to establish a prima facie case
in the Reply Brief, we find Appellants have conceded the merits of the prima
facie case for purposes of this Appeal. 37 C.F.R. § 41.37(c)(1)(vii).
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