Appeal No. 1996-0605
Application 07/989,593
LICHTENBERGER:
At page 4 of the Answer, the examiner states “Lichtenberger teaches
liposomal compositions containing Copper and antioxidants E and C (note col. 7,
lines 40-55; col. 8, lines 15-29; col. 15, lines 38-51; col. 23, lines 35-54[)].” In
response to the examiner’s position, appellant states at page 5 of the Brief that
“[i]n fact, the reference notes that lipid preparations ‘would have little or no
luminal space as would a classical liposomal structure’ (column 22, line 67 et
seq).” Appellant therefore contends that “the reference teaches away from the
claimed invention, since it is the lumenal space, the classical liposomal structure,
in which Applicant’s antioxidant composition rests.” See, Brief, page 5. In
addition, appellant provides the Stone Declaration to support this position. See,
Stone Declaration (Paper No. 12, received October 17, 1994) paragraph
5, page 3, which states “the lack of luminal space would clearly preclude the
ability to use this space to encapsulate chemical or enzymatic antioxidants.”
The examiner responds to the Stone Declaration by stating “. . . fat
soluble vitamins which are also claimed in the instant invention will not sequester
in the aqueous interior of the liposomes, but would be within the lipid bilayer of
the liposomes and thus, there is no issues of lack of luminal space.” See,
Answer, bridging paragraph of pages 6-7. However, Lichtenberger as relied on
by the examiner discloses a liposomal composition containing vitamin E and C.
See, Answer, page 4. In order to meet the limitations of the claims on appeal,
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