Appeal No. 2001-1162 Page 6
Application No. 08/726,803
any individual reference are to be combined with the disclosure of another reference, it
is unclear why the examiner believes the subject matter of any claim on appeal would
have been obvious from a consideration of Buchs as a so-called primary reference. To
the extent the examiner's rejection under 35 U.S.C. § 103 is premised upon a
combination of references using Buchs as a so-called primary reference, such a
rejection is reversed.
It cannot be gainsaid that Mueller describes sodium folinate solutions. See, e.g.,
Example 4. However, the examiner has not explained, and it is not apparent from
reading Mueller, how Mueller in and of itself teaches, suggests, or motivates one of
ordinary skill in the art to formulate the sodium folinate solutions of that reference in the
manner required by the claims on appeal. The examiner has not pointed to any
passage of Mueller, nor do we find any, which suggests that the sodium folinate
solutions of that reference should be used in combination with sodium citrate, sodium
acetate or mixtures thereof, or for that matter, any stabilizer. To the extent the
examiner's rejection is premised upon the use of Mueller as a so-called primary
reference, any such rejection under 35 U.S.C. § 103 is reversed.
The examiner’s reliance upon Remington’s and Hagers is unavailing as these
references do not provide the needed reason, suggestion or motivation to use sodium
citrate or sodium acetate in compositions which consist essentially of or consist of
sodium folinate.
We are aware that applicants rely upon a declaration filed under 37 CFR § 1.132
by J.J. Scherpbier. However, since we have determined that the references relied upon
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