Appeal No. 2002-0348
Application No. 09/176,416
quantities greater than two... Even though neither reference is
said to disclose this, the examiner asserts “Official notice”
that it was well known in the medical arts to determine for
individual drugs being audited withdrawal quantities greater than
two for non-emergency department stations and quantities greater
than three for emergency department stations [answer-page 6].
Therefore, the examiner concludes that it would have been obvious
to determine for individual drugs being audited withdrawal
quantities greater than two for non-emergency department stations
and quantities greater than three for emergency department
stations “because this criteria is defined as an abnormal pattern
and it is common, when auditing drugs in the medical art to
detect abnormalities. This is shown in DeBusk...” [answer-page
7].
We will not sustain the rejection of claims 1-41 under
35 U.S.C. 103 because it is clear, from the statement of the
rejection itself, that the examiner has not provided a prima
facie case of obviousness.
First, while the examiner contends, at page 3 of the answer,
that the subsequent reasoning applies to claims 1, 5, 7, 8, 10,
12, 13, 15-17, 19-21, 24, 25, 27, 30-32, 36, 37, 40 and 41 and
then proceeds to identify various claim recitations alleged to be
-5–
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