Appeal No. 1997-1705
Application 08/211,352
Rejection under 35 U.S.C. § 103
Appellant states that no claim is made for separate
patentability (brief, page 4). Thus, the claims stand or fall
together and we limit our discussion to one claim, i.e.,
claim 17. See In re Ochiai, 71 F.3d 1565, 1566 n.2, 37 USPQ2d
1127, 1129 n.2 (Fed. Cir. 1995); 37 CFR § 1.192(c)(7)(1995).
In order for a prima facie case of obviousness to be
established, the applied prior art must have provided one of
ordinary skill in the art with both a motivation to carry out
appellant’s claimed method and a reasonable expectation of
success in doing so. See In re Vaeck, 947 F.2d 488, 493, 20
USPQ2d 1438, 1442 (Fed. Cir. 1991); In re O’Farrell, 853 F.2d
894, 902, 7 USPQ2d 1673, 1680 (Fed. Cir. 1988).
Jankovic discloses under “Other Potential Indications”
(page 1191) that “[t]he effects of botulinum toxin on
spasticity in children with cerebral palsy are also being
studied” and, under “Strabismus and Other Disorders of Ocular
Motility” (page 1187), that “children under seven years of age
may require light ketamine anesthesia and restraint” when
treated with botulinum toxin. Jankovic states that he refers
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