Appeal No. 2001-0692 Page 10
Application No. 09/163,572
Examining Procedure (MPEP) § 1002.02(c) (petitions relating to formal
sufficiency and propriety of declarations under 37 CFR § 1.132 are decided by
Technology Center Directors); § 1201 (“The line of demarcation between
appealable matters for the Board of Patent Appeals and Interferences and
petitionable matters for the Commissioner of Patents and Trademarks should be
carefully observed.”). Therefore, the Brussolo declaration is not properly a part
of the record on appeal and we have not considered it.
3. Obviousness
The examiner rejected claims 8, 10, 13-33, 36, and 37 as obvious in view
of Evans and Pomponi. The examiner relied on Evans for the disclosures
discussed above. The examiner cited Pomponi as teaching “an assay for CETP
[cholesteryl ester transfer protein] in multiple 96-well microtiter plates to test for
inhibition of various compounds where the compounds were placed in the wells
with appropriate dilution, a testing screen was performed and the inhibition was
determined.” Examiner’s Answer, page 6. The examiner concluded that
[i]t would have been obvious to one or ordinary skill in the art at the
time the invention was made to screen compounds of any type in
the method of Evans because Pomponi teaches different
compounds than Evans determined in arrays and one would have a
high expectation of success in employing known reaction formats to
perform known reactions.
Id.
“In proceedings before the Patent and Trademark Office, the Examiner
bears the burden of establishing a prima facie case of obviousness based upon
the prior art.” In re Fritch, 972 F.2d 1260, 1265, 23 USPQ2d 1780, 1783 (Fed.
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