Appeal No. 2001-1265
Application No. 08/612,074
Examiner's Answer for the examiner=s complete reasoning in support of the rejection,
and to the appellants= Brief for the appellants= arguments thereagainst. As a
consequence of our review, we make the determinations which follow.
35 U.S.C. ' 103
Claims 25-36 stand rejected under 35 U.S.C. ' 103(a) as obvious over Weder 1,
Weder 2 or Lichtenberg, by themselves or in combination.
In rejecting claims under 35 U.S.C. ' 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established when the teachings from the prior art itself would appear to have suggested
the claimed subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d
781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires
that the prior art both suggest the claimed subject matter and reveals a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991).
It is the examiner=s position that (Answer, page 4):
Weder discloses a liposome system containing phospholipid and a bile
salt, sodium cholate (note the abstract, columns 3-10 and example 1).
Although the ratios of phospholipid to bile salts taught by Weder are
different from the instant ratios, it is deemed obvious to an artisan to
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