Appeal No. 2003-1450 7
Application No. 09/640,325
relies upon a tertiary reference to Eguchi. The Eguchi reference is directed to a plastic
material having a high level of antibacterial and antifungal activity. See Abstract and page
1. We find that Eguchi may be utilized in a molded plastic product. See page 1. Eguchi,
however, lacks any suggestion that the antibacterial plastic may be utilized in preparing a
medical applicator. Moreover, in treating diaper rash, one would necessarily have to make
contact between the antibacterial product of Eguchi and the more sensitive areas of an
infant skin, i.e., the genitalia and anal areas of the infant. On the record before us
however, there is no evidence to show that the utilization of the product of Eguchi would
be either appropriate or safe.
Accordingly, in our view the only suggestion for combining the Eguchi reference
with that of Moss and Franta comes from the teachings of the appellant. Based upon the
above finding and analysis, we conclude that the examiner has not established a prima facie
case of obviousness with respect to claim 8. See In re Dembiczak, 175 F.3d 994, 999,
50 USPQ2d 1614, 1617 (Fed. Cir. 1999) ("[T]he best defense against the subtle but
powerful attraction of a hindsight-based obviousness analysis is rigorous application of the
requirement for a showing of the teaching or motivation to combine prior art
references.").
DECISION
The rejection of claims 1 through 6 and 9 under 35 U.S.C. §103(a) as being
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