Appeal No. 2003-1149 Page 3
Application No. 09/853,540
The examiner has found that Azar and Zhou each disclose the use of
electromagnetic radiation for treating skin diseases, but do not show the claimed
frequency, rate, power, shape and sizes of the pulses used in the radiation. However,
the examiner has taken the position that one of ordinary skill in the art would have
found it obvious to modify either Azar or Zhou by using the values recited in the
appellant’s claim 1 in view of the teachings of Ross “to improve blood circulation for
optimal treatment result” (Answer, page 4).
The appellant has not taken issue with the examiner’s conclusion. To the
contrary, the appellant’s response can only be taken as agreement with the examiner’s
conclusion, to wit: The appellant has stated on page 4 of the Brief that “[a]pplicant
does not contest the anticipatory application of Ross” and, while the rejection is on the
basis of lack of patentability over the combined teachings of the references under 35
U.S.C.
§ 103 rather than anticipation under 35 U.S.C. § 102, anticipation is the epitome of
obviousness.2 The appellant also has offered the opinion, in the sentence bridging
pages 6 and 7 of the Brief, that
an individual well versed in the art . . . is fully conversant with the fact that
use is made of electromagnetic radiation for treating skin diseases. Thus,
the citation of only the ‘721 patent [Ross] was required in the examination
of applicant’s application on the issue of patentability.
2In re Fracalossi, 681 F.2d 792, 215 USPQ 569 (CCPA 1982).
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