Appeal No. 2002-0616 Page 6
Application No. 08/693,052
With respect to an obviousness rejection based on a combination of
references, as the court has stated, “virtually all [inventions] are combinations of
old elements.” Environmental Designs, Ltd. V. Union Oil Co., 713 693, 698, 218
USPQ 865, 870 (Fed. Cir. 1983); see also Richdel, Inc. v. Sunspool Corp., 714
F.2d 1573, 1579-80, 219 U.S.P.Q. (BNA) 8, 12 (Fed. Cir. 1983) (“Most, if not all,
inventions are combinations and mostly of old elements.”). Therefore, an
examiner may often find every element of a claimed invention in the prior art. If
identification of each claimed element in the prior art were sufficient to negate
patentability, very few patents would ever issue. The United States Court of
Appeals for the Federal Circuit, our reviewing court, however, has stated that
“the best defense against hindsight-based obviousness analysis is the rigorous
application of the requirement for a showing of a teaching or motivation to
combine the prior art references.” Ecolochem, Inc. v. Southern California Edison
Co., 227 F.3d 1361, 1371, 56 USPQ2d 1065, 1073 (Fed. Cir. 2000).
Gupta, Richards and Masihi are relied upon by the rejection as teaching
the use of combinations of adjuvants. Richards, in particular, is used to provide
the motivation to arrive at a combination of adjuvants as required by the instant
claims. Specifically, according to the rejection, Richards teaches adjuvant
effects are additive or synergistic, and results in the strongest immunization
antibody response when compared to adjuvants being used alone.
Gupta teaches that “MPL [monophosphoryl lipid A] when incorporated into
liposomes along with recombinant antigen of Plasmodium falciparum and mixed
with alum, stimulated a high antibody response to the antigen with no
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