Appeal No. 2002-1121 Page 5
Application No. 09/171,169
USPQ2d 1430, 1432 (Fed. Cir. 2002). As the obviousness rejection set forth by
the examiner does not meet the above criteria, it is reversed.
Jacobus teaches that:
The method of the present invention may be used to hydrate
retained mucous secretions and stimulate ciliary beat frequency in
the sinuses of a subject in need of such treatment. The present
invention increases mucociliary clearance in three ways: (1) by
increasing the ciliary beat frequency of cilia on the surface of
luminal epithelial cells, (2) by increasing the secretions of mucins by
goblet cells, and (3) by increasing the secretion of water into the
periciliary liquid layer as a result of increased secretion of Cl- ions
by luminal epithelial cells.
Jacobus, column 4, lines 15-23.
The examiner purports to bridge the gap between the teachings of
Jacobus and the claimed method of stimulating tear secretion and mucin
production in eyes by asserting that “the use of nucleoside phosphates to
promote fluid/secretion drainage of the sinuses, and sinus structures such as the
sclera venus sinus or canal of Schlemm- a venous channel that encircles the eye
in the angle at the sclera-cornea junction, which would be viewed as part of the
cornea,” thus apparently asserting that the sclera venus sinus is part of the sinus
structure being targeted by the Jacobus patent. The examiner, however,
provides no evidence to support that assertion. See In re Lee, 277 F.3d 1338,
1343-44, 61 USPQ2d 1430, 1433-34 (Fed. Cir. 2002) (in reviewing an
obviousness rejection, the court noted that “conclusory statements” as to
teaching, suggestion or motivation to arrive at the claimed invention “do not
adequately address the issue.”). Moreover, as contended by Appellants, the
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