Appeal No. 2004-0973
Application No. 09/898,155
1430, 1433-1434 (Fed. Cir. 2002). Thus, it is improper to rely on the “common
knowledge and common sense” of a person of ordinary skill in art to find an invention
obvious over a combination of prior art references, since the factual question of
motivation to select and combine references is material to patentability, and cannot be
resolved on subjective belief and unknown authority. In re Lee, 277 F.3d 1338, 1343-
1344, 61 USPQ2d 1430, 1433-1434 (Fed. Cir. 2002).
We do not find the examiner has provided evidence to support his position that
one of ordinary skill in the art would have optimized Valerian to greater amounts in view
of the disclosure of Shlyankevich. The rejection of claims 16-25 over Shlyankevich is
reversed.
Night Song
Similarly, Night Song discloses a composition comprising 800 mg. from Valerian
root and 60 mg of calcium carbonate. We do not find the examiner has provided
evidence to support his position that one of ordinary skill in the art would have
optimized calcium carbonate to greater amounts in view of the disclosure of Night Song.
The rejection of claims 16-25 over Night Song is reversed.
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