Appeal No. 2001-1294 Page 3
Application No. 08/473,667
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of going forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993). The test of obviousness is “whether the teachings of the prior art, taken
as a whole, would have made obvious the claimed invention.” In re Gorman,
933 F.2d 982, 986, 18 USPQ2d 1885, 1888 (Fed. Cir. 1991).
According to the examiner (Answer, page 4), “Tu disclosed naturally
occurring nicotine agonists with structural formula as anabaseine and DMBA-
anabaseine … and their function as a nicotine agonist….” The examiner also
finds (Answer, page 7), “Tu taught that anabaseine and DMAB-anabaseine are
naturally occurring toxin[s] which function as nicotinic agonists and … [are]
15 times more potent than nicotine….” The examiner relies on Meyer (Answer,
page 4) to teach “that anabaseine and DMAB-anabaseine have high affinity in
animal brain nicotine receptor,” and on Swanson (Answer, page 5) to teach the
use of “naturally occurring nicotine agonists as therapeutical [sic] agents for
treating nicotinic receptor pathology i.e. Alzheimer’s disease.” The examiner
relies on Remington (Answer, page 4) to teach the preparation of pharmaceutical
compositions, and on Remington and Rawlins (Answer, page 5) to teach
aqueous or liposome formulations.
The examiner’s statement of the rejection does not address Leeson. The
examiner, however, points out (Answer, page 8) that Leeson “described specific
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