Appeal No. 2004-0902 Page 9
Application No. 09/780,060
component such as phophatidic acid. These compositions are not even
remotely similar to the compositions of Kawada, and provide no insight into what
necessarily is true of the compositions of Kawada.” Id. at 6-7
As set forth above, we find that there is enough evidence supporting the
prima facie rejection of anticipation, thus the property of forming liposomes
would be an inherent property of the composition. The Concise Encyclopedia
Chemistry was merely used in the rejection to support the rejection’s contention
that one of ordinary skill in the art would expect liposomes to form, especially in
view of Kawada’s teaching at column 17 that a white cream was obtained having
small oily micelles. See Continental Can Co. USA v. Monsanto Co., 948 F.2d
1264, 1268, 20USPQ2d 1746, 1749 (Fed. Cir. 1991) Again, the Office does not
have the facilities to test the compositions of the prior art, thus the burden is
shifted to appellants to demonstrate that they are different. See In re Best, 562
F.2d 1252, 1254-55, 195 USPQ 430, 433 (CCPA 1977).
2. Rejection under 35 U.S.C. § 103(a)
Claims 4 and 5 stand rejected under 35 U.S.C. § 103(a) as being obvious
over Kawada.
Due to the brevity of the rejection, it is set forth in its entirety below:
Kawada [ ] applied as above. With respect to Claims 4 and
5, Kawada [ ] do[es] not teach using bovine brain ceramide or
ceramide 2. however [sic], Kawada [ ] teach[es] that their
composition “is used for a cosmetic or pharmaceutical product, it
gives the same effect as a known natural ceramide extracted from
bovine brain.” See col. 11, lines 64-67. Therefore, it would have
been obvious to one of ordinary skill in the art at the time the
claimed invention was made to use bovine brain ceramide or any
other ceramide used in cosmetic compositions for compositions of
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