Appeal No. 2001-0870 Page 6
Application No. 08/422,381
factors recited in the claims, and in particular, to have considered different factors
depending on whether the patient was male or female.
“The admonition that ‘obvious to try’ is not the standard under § 103 has
been directed mainly at two kinds of error. In some cases, what would have
been ‘obvious to try’ would have been to vary all parameters or try each of
numerous possible choices until one possibly arrived at a successful result,
where the prior art gave either no indication of which parameters were critical or
no direction as to which of many possible choices is likely to be successful.”
In re O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988)
(citations omitted). In this case, the references cited by the examiner may have
made it obvious to try varying different factors to see if they affected the dosage
effectively delivered by a nicotine patch, but they would not have rendered
obvious the claimed method.
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