Appeal No. 2003-0569 Page 4
Application No. 09/381,044
specification lists matrices separately from binders provides some evidence that the two are
structurally different and that the suggestion of one would not have suggested the other to one of
ordinary skill in the art.
The ordinary and accustomed meaning of “binder” and “matrix” also supports
Appellants’ argument. A binder produces or promotes cohesion in loosely assembled
substances.2 A matrix is a material in which something is enclosed or embedded.3 Something
that promotes cohesion need not form a matrix. The word matrix suggests a network structure
and such a network structure is more continuous in extent than the less continuous distribution
needed to merely cause cohesion.
While the Examiner argues that Appellants have not provided evidence of a difference,
the burden is on the Examiner to provide factual support for the prima facie case of obviousness.
In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). We note that
Norling is relied upon in both rejections as teaching the required excipient and, therefore, as
applied by the Examiner, Kwan does not remedy the deficiencies in the prima facie case. We
conclude that the Examiner has not established a prima facie case of obviousness with respect to
the subject matter of claims 11-20.
2See Binder, Merriam-Webster Collegiate Dictionary, electronic version 2.5 (2000) at definition 3. A copy
accompanies this Decision.
3See Matrix, Merriam-Webster Collegiate Dictionary, electronic version 2.5 (2000) at definition 3b. A
copy accompanies this Decision.
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