Appeal No. 2003-1167 Page 4
Application No. 09/195,340
opinion that the examiner failed to demonstrate that Hubbell discloses each and
every limitation of the claimed invention.
Accordingly, we reverse the rejection of claims 6, 14, 18, 19 and 24 under
35 U.S.C. § 102(e) as being anticipated by Hubbell.
THE REJECTION UNDER 35 U.S.C. § 103:
As discussed above, the examiner recognizes (Answer, page 6) that
Hubbell does not teach vascularization, or the active agents of the claimed
invention. Accordingly, Hubbell alone is not sufficient to establish a prima facie
case of obviousness. However, the examiner asserts (id.), “[o]ne skilled in the
art would be motivated further to include [the] instant active agent since the
references of Sierra, Hunziker and Marx teach the deliver[y] of these agents at
the site based on the same principle, that is ‘polymerization at the site’….”
With emphasis on Hunziker, the examiner asserts (Answer, page 7),
Hunziker clearly states that the growth factor, Fibroblast growth
factor is involved in the growth of vascular endothelial cells.
Applicant’s [sic] arguments that Hunziker is not directed to
vascularization are not found to be persuasive since Hunziker
teaches the application of the composition after surgery and
naturally the tissue healing involves vascularizaiton.
However, Hunziker is directed to repairing defects in cartilage, and appellants
point out (Brief, page 11) that “cartilage is avascular ([Hunziker], column 1, lines
37-38).” Therefore, appellants’ argue (id.), “Hunziker clearly fails to disclose a
treatment which promotes vascularization or revascularization.” Appellants find
the same flaw in the examiner’s reliance on Sierra and Marx, which according to
appellants “are directed to repairing avascular cartilage.” Brief, page 12.
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: November 3, 2007