Appeal No. 2001-0942 Page 9
Application No. 08/473,960
compounds are administered in relation to the application of ionizing radiation.
Accordingly, we are satisfied that one of ordinary skill reading Mitchell claim 13 would
be led to administer a compound either before or, as set forth in instant claim 17, after
ionizing radiation to similarly treat the effects of oxidative stress.
For the foregoing reasons, the rejection is affirmed.
Obviousness
Claims 17 and 19-21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Samuni in view of Nilsson I or Nilsson II, and Bose and “the admitted
prior art set forth in the instant specification, especially example 6.”
The claims stand or fall together (Brief, p. 4). Accordingly, we will focus on sole
independent claim 17.
Examiner has the burden of establishing a prima facie case of obviousness. In
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Accordingly, examiner has the initial burden of establishing that the claimed invention,
as represented by claim 17, would have been obvious over Samuni in view of Nilsson I
or Nilsson II, and Bose and the admitted prior art as represented by example 6 of the
specification.
As a preliminary matter, we have had to go back to the Office action of
February 12, 1999 (Paper No. 23) when the rejection was first raised to get an
explanation of the prima facie case of obviousness. Neither the Examiner’s Answer
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