Appeal No. 1996-0605
Application 07/989,593
and both are concerned with sustained release systems.” However, there is no
suggestion in Motoyama that liposomes are “sustained release systems” or of
using liposomes in a method of delivering non-enzymatic antioxidants, or a
method of increasing the level of antioxidants in a cell of a mammal. The initial
burden of presenting a prima facie case of obviousness rests on the examiner.
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
On the record before us, the examiner has not provided sufficient evidence to
support a conclusion that the claimed subject matter would have been prima
facie obvious within the meaning of 35 U.S.C. § 103 at the time of the invention.
We, therefore, reverse the rejection of claims 8, 11, 14 and23-32 under
35 U.S.C. § 103 over UNIMED in view of Motoyama.
OTHER ISSUES
We note the examiner’s characterization of UNIMED at page 7 of the
Answer, “UNIMED’s advertisement on ONDROX shows the availability of
mixtures of several antioxidants in a sustained release formulation . . . UNIMED
on the cover page also teaches the reasons for the administration of
antioxidants.” We also note that liposomes were known in art at the time the
invention was made to be drug delivery systems. See e.g., Iga et al., United
States Patent No. 5,080,914. Upon return of this application, the examiner
should take a step back and reevaluate patentability of the claimed invention in
view of the art at the time the instant invention was made. If the examiner
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