Appeal No. 1996-1080
Application No. 07/869,111
800 F.2d 1091, 1099, 231 USPQ 375, 381 (Fed. Cir. 1986). The
Declarant has not stated or demonstrated that the results
summarized in Table 1 are unexpected (Watanabe II Declaration,
page 8, paragraph (2)).
For the foregoing reasons, we determine that, based on
the totality of the record, including the arguments and
evidence presented for and against patentability, the
preponderance of evidence weighs most heavily in favor of
obviousness within the meaning of § 103. Accordingly, the
rejection of claim 3 under
§ 103 as unpatentable over Watanabe in combination with Faubl
and Kirk-Othmer is affirmed.
C. The Rejection of Claims 1 and 2
Claims 1 and 2 stand rejected under § 103 as unpatentable
over Faubl in combination with Watanabe and Kirk-Othmer
(Answer, page 2). Since appellants have stated that claims 1
and 2 stand or fall together (Brief, page 6), we decide this
rejection on the basis of claim 1 alone (see 37 CFR §
1.192(c)(5)(1993)).
The examiner finds that Faubl discloses a “closely
analogous erythromycin derivative” but fails to disclose the
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