Appeal No. 2002-1063 Page 6
Application No. 09/306,552
It is the examiner’s view that it would have been obvious to one of ordinary skill
in the art to modify the Gies system by replacing the cups with bottles in view of Olsson,
which discloses a system for aseptically transferring a plurality of pharmaceutical
bottles. According to the examiner, the suggestion for doing so is “because it has been
held to be within the general skill of a worker in the art to select a known material on the
basis of its suitability for the intended use as a matter of obvious design choice. In re
Leshin, 125 USPQ 416" (Answer, page 5). However, as we view this situation, the
mere fact that the prior art system could be modified does not make such a modification
obvious unless the prior art suggests the desirability of doing so. See, In re Gordon,
733 F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). And, in the present case,
we fail to perceive any teaching, suggestion or incentive in either reference which would
have led one of ordinary skill in the art to substitute a pharmaceutical bottle for the
disclosed foil-covered yoghurt cup that used in the Gies system, considering that, to
use the words attributed by the examiner to Leshin, the pharmaceutical bottles would
appear not to be suitable for packaging yoghurt.
The examiner considers the step of aseptically disinfecting the bottles to a level
producing at least about a 6 log reduction in spore organisms as being obvious “since it
has been held that discovering an optimum value of a result effective variable involves
only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)”
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