Appeal No. 2002-1728 Page 4
Application No. 09/339,239
patented in claim 18 except administration "in a plurality of individual doses which total
said daily effective dose." On this point, we agree with the examiner that it would have
been obvious to modify the method of Eisenberg, per the teachings of Chiang, by
administering $ser interferon "in a plurality of individual doses which total said daily
effective dose." More specifically, it would have been obvious to modify the method of
Eisenberg, per the teachings of Chiang, by administering $ser interferon twice daily. We
are persuaded that a person having ordinary skill, armed with the disclosure of Chiang,
would have found adequate reason, suggestion, or motivation to modify the method of
Eisenberg by administering $ser interferon twice daily; and would have arrived at the
method recited in claim 18. We conclude, therefore, that claim 18 would have been
prima facie obvious in view of the combined disclosures of Eisenberg and Chiang. On
this record, applicant has not presented objective evidence of non-obviousness serving
to rebut the prima facie case.
Applicant appears to acknowledge that a person having ordinary skill in the art
would have been motivated to administer Eisenberg's $ser interferon in twice daily
dosages, per the teachings of Chiang. See the Appeal Brief, Paper No. 15, page 19,
first full paragraph ("one of ordinary skill in the art combining the teachings of Eisenberg
et al. and Chiang et al. would only be motivated to administer the IFN-$ser of Eisenberg
et al. in twice daily dosages for a period of time not exceeding ten days"). Again,
applicant does not set forth any argument in the Appeal Brief, based on a limitation in
claim 18, which would serve to patentably distinguish that claim over the combined
disclosures of Eisenberg and Chiang.
The rejection of claim 18 under 35 U.S.C. § 103(a), to the extent predicated on
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