Appeal No. 2002-0456 Page 4
Application No. 09/155,995
Findings of fact underlying an obviousness rejection, as well as conclusions of
law, must be made in accordance with the Administrative Procedure Act, 5 U.S.C. 706
(A),(E) (1994), see Zurko v. Dickinson, 527 U.S. 150, 158, 119 S.Ct. 1816, 1821, 50
USPQ2d 1930, 1934 (1999), and must be supported by substantial evidence within the
record. See In re Gartside, 203 F.3d 1305, 1315, 53 USPQ2d 1769, 1775 (Fed. Cir.
2000). In addition, in order for meaningful appellate review to occur, the examiner must
present a full and reasoned explanation of the rejection. See, e.g., In re Lee, 277 F.3d
1338, 1342, 61 USPQ2d 1430, 1432 (Fed. Cir. 2002). We would further emphasize
what should be self-evident: the examiner must present a full and reasoned explanation
of the rejection in the statement of the rejection, specifically identifying underlying facts
and any supporting evidence, in order for appellants to have a meaningful opportunity
to respond.
The claimed process requires the addition of a “bifunctional” cross-linking agent
to a polysaccharide solution or suspension before the polysaccharides are allowed or
induced to form a gel. The bifunctional cross-linking agent must have one active site
which reacts with - and substitutes - the polysaccharides before gel formation, and
another site, initially inactive, that is activated (and allowed to react with and cross-link
the polysaccharides) after gel formation. Having failed to address this aspect of the
invention in the first instance, the examiner belatedly argues that “inspection of
Example 1 of [Lindgren] suggests that the process of the cited reference also does not
produce a gel until after the [substitution] portion of the process has been completed.”
Nevertheless, Lindgren, at columns 3 and 4, describes a generic process
whereby pre-formed polysaccharide gels are substituted and cross-linked with
bifunctional cross-linking agents. Example 1, which immediately follows, describes the
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