Appeal No. 2004-2202 Page 4
Application No. 10/016,324
chains on the liposome outer surface.” The examiner rejected the claims as anticipated
by and obvious over the prior art.
1. Anticipation
The examiner rejected claims 29-31, 33-37, and 39-45 as anticipated by
Marshall. The examiner characterizes Marshall as “disclos[ing] liposome formulations
containing a cationic amphiphile, DOPE and PEG (5000)-DMPE for the administration
of therapeutic molecules by inhalation . . . (note the abstract, col. 34, line 27 et seq.,
column 54, line 31 et. Seq.).” Examiner’s Answer, page 3.
Appellants argue that Marshall does not anticipate the instant claims because it
“fails to show at least three of the following presently claimed elements: (1) a liposome;
(2) a liposome having a coating of hydrophilic polymer chains; and (3) a liposome
having an entrapped therapeutic agent.” Appeal Brief, page 3. Appellants argue that
Marshall does not teach the claimed composition because, among other things, it
“describe[s] preparing a dispersion of a cationic amphiphile; contacting the dispersion
with a biologically active molecule to form a complex [not a liposome] between said
amphiphile and said molecule.” Id., page 4.
The examiner bears the burden of showing that a claimed invention is anticipated
by the prior art. See In re Wilder, 429 F.2d 447, 450, 166 USPQ 545, 548 (CCPA 1970)
(“[I]n an ex parte proceeding to obtain a patent . . . the Patent Office has the initial
burden of coming forward with some sort of evidence tending to disprove novelty.”). “A
claim is anticipated only if each and every element as set forth in the claim is found,
either expressly or inherently described, in a single prior art reference.” Verdegaal
Bros., Inc. v. Union Oil Co., 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987).
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