Appeal No. 2004-0670 Page 8
Application No. 09/276,741
Rahman conclude (column 5, lines 27-31), “[a]s shown in FIG. 2 by day 12, three
mice in the free taxol group died because of toxicity whereas no toxicity or
mortality was observed in mice which were injected with taxol encapsulated in
liposomes.” On reflection, it is our opinion that the examiner failed to support her
assertion with evidence on this record. In this regard, we remind the examiner
that findings of fact and conclusions of law must be made in accordance with the
Administrative Procedure Act, 5 U.S.C. 706 (A), (E) (1994). See Zurko v.
Dickinson, 527 U.S. 150, 158, 119 S.Ct. 1816, 1821, 50 USPQ2d 1930, 1934
(1999). Findings of fact relied upon in making the obviousness rejection must be
supported by substantial evidence within the record. In re Gartside, 203 F.3d
1305, 1315, 53 USPQ2d 1769, 1775 (Fed. Cir. 2000) (“because our review of
the board’s decision is confined to the factual record compiled by the board …
the ‘substantial evidence’ standard is appropriate for our review of board fact
4 The examiner failed to identify any portion of the Rahman patent that supports her assertion
that “encapsulation of a pharmaceutical agent within a liposome … [results in a] reduction of
irritation caused by said pharmaceutical agent.”
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