Appeal No. 2003-1167 Page 3
Application No. 09/195,340
page 6) that Hubbell does not teach vascularization, or the active agents of the
claimed invention, the examiner asserts (Answer, page 4), “Hubbell teaches the
administration of the composition after surgery. This means there is an incision
and therefore, that area requires vascularization and Hubbell teaches the
delivery of various active agents at this site.” In our opinion, the lack of specificity
in the examiner’s argument serves only to emphasize his failure to establish a
prima facie case of anticipation.
Hubbell discloses (abstract), the “[p]referred applications for the hydrogels
include prevention of adhesion formation after surgical procedures, … temporary
protection or separation of tissue surfaces, adhering of [sic] sealing tissues
together, and preventing the attachment of cells to tissue surfaces.” As the
examiner recognizes, Hubbell makes no mention of vascularization, or for that
matter, revascularization. In addition, the examiner makes no attempt to
demonstrate a nexus between any “active agent” taught by Hubbell and
appellants’ claimed biologically active molecule, which is required to be effective
to promote vascularization or revascularization of tissue. To the contrary, the
examiner admits that Hubbell does not teach the active ingredients of the
claimed invention.
We remind the examiner that anticipation under 35 U.S.C. § 102 requires
that a single prior art reference disclose each and every limitation of the claimed
invention. Electro Med. Sys. S.A. v. Cooper Life Sci., 34 F.3d 1048, 1052, 32
USPQ2d 1017, 1019 (Fed. Cir. 1994). For the foregoing reasons, it is our
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