Appeal No. 1999-0342
Application 08/184,813
Alsop, in fact, describes a peritoneal dialysis solution including maltodextrins in a
particular molecular weight distribution. Alsop appears to cursorily mention that amino
acids may be included in the composition to function as an electrolyte or other
additive/adjuvant. Alsop, pages 10-11 and 38.
The examiner summarizes that “one of ordinary skill in the art at the time the instant
invention was made would have been motivated to vary the amounts of glucose polymer
and amino acids in order to prepare a composition having optimal results.” Answer, page
4.
Appellants respond, arguing that the examiner has failed to establish a prima facie
case of obviousness as the examiner has failed to meet the burden of showing
1) a two component osmotic agent for peritoneal dialysis containing both maltodextrins
and amino acids in the claimed amounts (Brief, page 13) and 2) the defined degree of
polymerization of the maltodextrins (Brief, page 14). Appellants also argue the evidence
provided in the specification shows unexpected and improved peritoneal dialysis osmotic
results when maltodextrin is combined with amino acids (Id.).
We agree with appellants that the examiner has not established a prima facie case
of obviousness. The motivation to combine references was discussed in Ecolochem Inc.
v. Southern California Edison, 227, F.3d 1361, 1375, 56 USPQ2d 1065, 1075 (Fed. Cir.
2000). Ecolochem stated that the:
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