Appeal No. 2003-1736
Application No. 09/123,137
The examiner concludes (Id., page 6):
It would have been obvious to an artisan to combine two different
agents well-known in the art for use against the same condition with the
expectation of obtaining at least an additive effect. ... An artisan would be
further motivated to use the combination of the photopolymerizable
hydrogels and the reactive oxygen species inhibitors in view of the
disclosure of WO [93/17669] which teaches that by using the
polymerizable gels one can also encapsulate various macromolecules
such as enzymes (SOD is an enzyme) and drugs affecting reproductive
organs (instant claim 31, endometriosis) for sustained drug delivery. It
should be pointed out that WO uses the gels for the same purpose (see
the abstract and page 18). The use of microcapsules encapsulating the
inhibitors of reactive oxygen species, within the hydrogel would have been
obvious to an artisan since such combination of microcapsules/hydrogels
have enhanced biocompatibility as taught by Sawhney [2] 1993 (note the
abstract and 1012) and also since it provides double protection to the
encapsulated inhibitors.
The appellants argue that the examiner has failed to establish a prima facie case
of obviousness and that nothing in the cited references would lead one of ordinary skill
in the art to combine the gels of the cited references with the compounds described in
the appellants' specification, with any expectation of success. Brief, page 13. We
agree. The appellants argue that the prior art referenced in the specification discloses
the systemic administration of agents which destroy oxygen species using an
intravenous bolus before surgery, however the effectiveness of the agents was limited
by their rapid elimination from the blood stream. Brief, page 11. In contrast, the
appellants' claims require that the barrier containing an active oxygen inhibitor persist at
the site for days to weeks. With respect to WO 93/17669 which teaches the
incorporation of drugs or enzymes in hydrogels, appellants argue that “WO 93/17669
does not teach the selection of active oxygen inhibitors from among the many different
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