Appeal No. 1996-1934
Application 07/884,218
Cir. 1996). In this case, the examiner provides a reason to use hyaluronic acid, a
conventional carrier for various medicaments, in the method of Goldberg. As
explained by the examiner at page 4 of the Answer:
[S]ince della Valle et al disclose hyaluronic acid
to be a conventional carrier for various medicaments,
including antibiotic clindomycin, a person having
ordinary skill in the art at the time the instant invention
was made would have been motivated to introduce into
peritoneal cavity a solution of hyaluronic acid and a
medicament in order to prevent surgical adhesions and
to combat intraperitoneal infection.
Therefore, appellant’s position regarding the motivation to combine
Della Valle with Goldberg is not persuasive.
At page 13 of the Brief, appellant argues that Table 1 and Table 2, see
specification pages 9 and 10, establish that when an antibiotic is combined with
hyaluronic acid, unexpected and synergistic results are obtained. However,
“synergism is one factor to be considered in the ultimate determination of
obviousness of the composition . . . we attribute no magic status to synergism per
se since it may be expected or unexpected.” In re Huellmantel, 324 F.2d 998, 1003,
139 USPQ 496, 500 (CCPA 1963). On the record before us, we see nothing
"unexpected" in appellant's synergism. Nothing in the record shows that similar
synergism would not be obtained by the combination of Della Valle with Goldberg.
We note of interest Table 1, column 26 of Della Valle, which demonstrates that the
combination of hyaluronic acid and antibiotic was better than antibiotic alone.
Therefore, we are not convinced that appellant’s synergism is unexpected.
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