Appeal No. 2003-2147
Application No. 09/392,243
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amount which, in some instances, is undetectable by KMnO4 titration.
Furthermore, appellants concede that “if the concentration of the peroxide
containing compound remaining in the mucosa product, when determined by KMnO4
titration, is not “undetectable” (i.e. is “detectable”) ..., then the person knows the
particular subject matter fall outside the literal scope of claim 42.” Brief, page 39.
In view of the above, when claim 42 is read in view of the specification the claim
language is not indefinite. The rejection of claim 42 for indefiniteness is reversed.
35 U.S.C. §103(a)
Claims 21-27 and 36-54 stand rejected under 35 U.S.C. §103(a), as obvious
over Van Gorp in view of Balslev and Oles.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). It is well-established that the
conclusion that the claimed subject matter is prima facie obvious must be supported by
evidence, as shown by some objective teaching in the prior art or by knowledge
generally available to one of ordinary skill in the art that would have led that individual to
combine the relevant teachings of the references to arrive at the claimed invention. See
In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
1 The examiner also appears to understand that the prior art, Balslev, Column 6,
lines 39-68, teaches that hydrogen peroxide continuously decomposes over time,
eventually to a concentration of zero. Answer, page 11.
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