Appeal No. 1997-2356
Application 08/109,798
citric acid/phosphate buffers have a buffering capacity in the range of 2.2-7.8. Answer,
page 7.
It is the examiner’s position that it would have been prima facie obvious to one of
ordinary skill in the art at the time the invention was made to provide NGF in an aqueous
pharmaceutical composition or formulation at the concentrations, and with biologically
compatible buffers and carriers as taught by Finkenaur, at a pH of about 5.0 as taught by
Pignatti, using a stabilizer such as human serum albumin, as taught by Wang, and using
isotonically normal salt concentrations and citric acid as taught by Diem, so that the NGF
may be used in a pharmaceutical formulation that will provide the stable and biologically
active NGF for pharmaceutical use due to the known benefit of NGF on neurons, as taught
by the references. Answer, pages 7-8.
Where the prior art, as here, gives reason or motivation to make the claimed NGF
formulation, the burden then falls on an appellants to rebut that prima facie case. Such
rebuttal or argument can consist of any other argument or presentation of evidence that is
pertinent. In re Dillon, 919 F.2d 688, 692-93, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en
banc), cert. denied, 500 U.S. 904 (1991).
In the present case, appellants rely on a Declaration of Deborah Lidgate as
evidence of the nonobviousness of claimed invention. The appellants argue that the
Lidgate Declaration provides experimental results of the improved stability of NGF in the
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