Appeal No. 2004-0903 Page 2
Application No. 09/008,957
The examiner relies upon the following references:
Holick et al. (Holick) 4,728,643 March. 01, 1988
Holick et al. (Holick) 5,254,538 Oct. 19, 1993
Gulbrandsen et al. (Gulbrandsen) 5,700,790 Dec. 23, 1997
Claim 1 stands rejected under 35 U.S.C. § 103(a) as being obvious over
the combination of Holick I and II, Bishop and Gulbrandsen. After careful review
of the record and consideration of the issue before us, we reverse.
PROCEDURAL BACKGROUND
The instant application was remanded by the Board to the examiner on
September 8, 2003 for further consideration and analysis of specified evidence
made of record by appellants. See Paper No. 31. Although the examiner did not
specifically address the specified evidence,2 in the interest of judicial economy
and in the interest of advancing the prosecution of this application, the panel has
determined that the issue is adequately before us on appeal, and has decided
the merits of the appeal.
DISCUSSION
Claim 1 stands rejected under 35 U.S.C. § 103(a) as being obvious over
the combination of Holick I and II, Bishop and Gulbrandsen.
Holick I and II, Bishop and Gulbrandsen are cited for teaching a generic
group of vitamin D derivatives and their uses. According to the rejection, “[e]ach
reference exemplifies 1α-hydroxyl-vitamin D4 and/or 1α-hydroxyl-vitamin D3.”
Supplemental Examiner’s Answer, page 4.
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