Appeal No. 2003-1020 Page 5
Application No. 08/859,051
skilled in the art would reasonably expect the topically applied liposomal composition of
Bonte and R[ö]ssling would enter the hair follicles from the teachings of [du] Plessis”
(Answer, page 5).
Nevertheless, the examiner does not identify anything in Rössling or Bonte (or
du Plessis) that would indicate that there is any disadvantage associated with liposomal
preparations containing some unencapsulated agent. Indeed, Bonte specifically
teaches that “it is not necessary that the whole of the active principle be incorporated or
encapsulated in order to obtain the desired effect” (Bonte, column 7, lines 40-44).
Mezei, like Bonte and Rössling, demonstrates that encapsulating an active agent in
liposomes results in higher local potency and fewer systemic effects, but does not
comment on the effect, if any, of removing all unencapsulted active agent from the
liposomal preparation. In any case, claims 116-121, at least, require selective
deposition “to the cells of the hair follicle and to the hair shaft itself” rather than “the
dermis or the circulation,” but Mezei noted substantial deposition of liposomally-
encapsulated triamcinolone in the dermis and epidermis. Finally, we cannot agree with
the examiner’s interpretation of du Plessis - there is nothing in the reference to indicate
that liposome-encapsulated active agent preferentially enters the hair follicles; rather,
du Plessis seems to indicate that the “follicular route” or “follicular pathway” is an
effective conduit for “drug transport into strata below and beyond the stratum corneum,”
i.e., transport into dermal layers below the skin’s surface (page 263).
Clearly, the examiner has established that individual parts of the claimed
invention were known in the prior art. However, as explained in In re Kotzab, 217 F.3d
1365, 1369-70, 55 USPQ2d 1313, 1316 (Fed. Cir. 2000) (citations omitted):
A critical step in analyzing the patentability of claims pursuant to section
103(a) is casting the mind back to the time of invention, to consider the
thinking of one of ordinary skill in the art, guided only by the prior art
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