Appeal No. 2000-1906
Application No. 09/063,338
The examiner rejected all of the claims over the combined teachings of
Antanavich,1 Hirsh, Cochrum, Barrow, and Suzuki. After reviewing the teachings
of the references, the examine r concluded that
it would have been obvious to one of ordinary skill in the art at the
time the invention was made to produce an autologous bioadhesive
sealant by withdrawing sufficient amount of autologous blood to
prepare both the platelet rich plasma component and the thrombin
component at the same time. . . . It further would have been merely
a matter of saving time and resources to withdraw the blood and
reduce it all to platelet rich plasma prior to separation for formation
of the two components of the adhesive as it is clear from the prior
art the platelet rich plasma would contain the thrombin (per the
teaching of Hirsch [sic]) upon activation of the second portion of
platelet rich plasma. . . . As it is well known from the teachings of
the prior art taken as a whole, autologous proteins are always
preferred to preclude issues of viral contamination and immune
reactions to allogeneic proteins.
Examiner’s Answer, page 8 (emphasis in original).
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is met,
does the burden of coming forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993). “The consistent criterion for determination of obviousness is whether the
prior art would have suggested to one of ordinary skill in the art that this process
should be carried out and would have a reasonable likelihood of success, viewed
in the light of the prior art. Both the suggestion and expectation of success must
be founded in the prior art, not in the applicant’s disclosure.” In re Dow Chem. Co.,
837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988) (citations omitted).
1 The examiner cited both Antanavich patents in the statement of rejection. However, the patents
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