Appeal No. 2000-1909 Page 3
Application No. 08/790,528
discloses the H-2 antagonists can be incorporated into a chewing
gum matrix and are released from said matrix. The antacid and
anti-flatulent are ingredients well known and often used in the
treatment of acid reflux or GERD, as set forth previously. H-2
antagonists are also well known for use in the treatment of acid
reflux or GERD. The court has determined that the combination of
two or more ingredients known in the art for the same uses is
obvious, and unpatentable. (In re Kerkhoven 205 USPQ 1069
(CCPA 1980)) which states: “It is prima facie obvious to combine
two compositions each of which is taught by prior art to be useful
for same purpose in order to form [a] [sic] third composition that is
to be used for very same purpose; idea of combining them flows
logically from their having been individually taught in prior art . . .”)
It would have been obvious to one of ordinary skill in the art at the
time the invention was made to have combined the acid production
inhibitor of Singer with the antacids and antiflatulents of
composition marketed as Tempo, as it would lead to a longer term
inhibition of acid production, in combination with the quick acid
relief provided by the antacids and the anti-flatulent.
Examiner’s Answer, pages 4-5.
Appellant argues that there is no motivation to combine Singer with the
composition marketed as Tempo. Appellant asserts that while Singer teaches
the use of H-2 antagonists in a chewing gum matrix for the treatment of gingivitis,
Singer teaches the use of the chewing gum matrix as a topical carrier that is
expectorated rather than be swallowed. Thus, appellant argues there is no
motivation to combine a product that is chewed and not swallowed, i.e., the
chewing gum of Singer, with a product that is to be swallowed, i.e.. the Tempo
composition. See Appeal Brief, pages 4-6.
The burden is on the examiner to set forth a prima facie case of
obviousness. See In re Alton, 76 F.3d 1168, 1175, 37 USPQ2d 1578, 1581
(Fed. Cir. 1996). With respect to an obviousness rejection based on a
combination of references, as the court has stated, “virtually all [inventions] are
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