Appeal No. 2002-0455 4
Application No. 09/123,620
oxidant when referring to free-radic[a]l chain reactions and one-electron transfers
is to torture the accepted meaning of ‘anti-oxidant’ beyond recognition. Anti-
oxidants prevent the reaction of oxygen, peroxides etc[.] with substrates. These
reactions all involve two-electron transfers which permanently, and not
transitorially, change the oxidation state of the compound being oxidized.”
“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 coming forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993). “Measuring a claimed invention against the standard established by
section 103 requires the oft-difficult but critical step of casting the mind back to
the time of invention, to consider the thinking of one of ordinary skill in the art,
guided only by the prior art references and the then-accepted wisdom in the
field.” In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir.
1999).
In this case, the examiner has not carried her initial burden of showing
prima facie obviousness. We cannot agree with the examiner’s rationale that the
specification admits that antioxidants were known to inhibit NF-κB, and that a
person of ordinary skill in the art would recognize that van’t Riet’s compounds
were antioxidants because of their free radical scavenging and ribonucleotide
reductase inhibiting activities.
First of all, the examiner has cited no evidence to support her position that
those of skill in the art would have recognized that antioxidant activity would be
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