Appeal No. 98-2247 8
Application No. 08/108,822
It is well settled that it is the examiner who has the burden of establishing that one
of ordinary skill in the art would have found the requisite motivation and reasonable
expectation of success for the proposed modification from the applied prior art teachings.
See In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). It is
reasonable to conclude based upon the above findings that there is neither a suggestion
in the art of record to utilize the cholesteryl hemisuccinate of Klein to form a liposome,
nor a reasonable expectation of success was fully employing cholesterol derivative of
Klein in liposome formation.
Finally, the references to both Martindale and Panzarella are directed to limitations
present in dependent claims, but do not remedy the deficiencies discussed above.
Accordingly, the rejections of the examiner are reversed.
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