Appeal No. 2005-0126
Application No. 09/967,791
the art, or, in some cases the nature of the problem to be solved.” In re Kotzab, 217
F.3d 1365, 1369, 55 USPQ2d 1313,1317 (Fed. Cir. 2000); Pro-Mold &Tool Co. v. Great
Lakes Plastics, Inc., 75 F.3d at 1573, 37 USPQ2d at 1630. In this case, I find that the
suggestion to arrive at the claimed invention arises primarily from the latter two, i.e.,
from knowledge of those having ordinary skill in the art and the nature of the problem to
be solved.
Here, I find that all parties, the examiner, the appellant and the majority, are in
agreement that both Naito and Keep evince that the use of hypertonic sugar
compositions to increase the permeability of the blood-brain barrier for passage by other
compounds was known in the art at the time the application was filed. To that end, the
examiner points out that Naito discloses that a hypertonic sugar solution provides “a
vehicle and a method for transporting substances across the blood brain barrier.”
Answer, p. 5, pointing to Naito, col. 2, lines 2-4. The examiner further points out similar
teachings in Keep. Answer, p. 6 relying on Keep col. 5, lines 35-42 and
col. 6, lines 29-33. The applied prior art also discloses that the hypertonic sugar
composition can be administered “in combination, simultaneously or in sequence” with
the compound of interest (i.e., the compound/medication for which it is desired to treat
the nervous system). Keep, col. 6, lines 29-33; Naito, col. 3, lines 39-50. Thus, the only
difference between the claimed method and the methods taught by Naito and Keep is
the route of administration of the hypertonic sugar composition. In this regard,
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