Appeal No. 1997-0138
Application No. 08/383,912
The examiner also argues that "applicant acknowledges at
p. 10 of the disclosure that his process of making the
liposomal composition is known in the art and described in
other patent literature." See Answer, page 4. Nowhere does
the disclosure relied on by the examiner, however, clearly
admit that the claimed process was "known . . . and described
in other patent literature [at the time of the invention] ." 2
See specification, page 10.
In view of the foregoing, we agree with appellant that
the examiner has not established a prima facie case of
obviousness regarding the claimed subject matter.
Accordingly, we reverse the examiner’s decision rejecting all
of the appealed claims under 35 U.S.C. 103.
OTHER ISSUE
In the "Response to argument" section of the Answer, the
examiner relies on page 10 of the disclosure to show that
2Moreover, we note that the examiner does not rely on
appellant’s admission or other patent literature in her
statement of rejection. When, as here, the statement of
rejection does not include appellant’s admission or other
patent literature as the prior art supporting the rejection,
we need not consider them in evaluating the examiner’s
rejection. In re Hoch, 428 F.2d 1341, 1342 n. 3, 166 USPQ
406, 407 n. 3 (CCPA 1970).
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