Appeal No. 2005-0410
Application No. 09/902,461
From the foregoing it reasonably follows that we do not find that Fuller inherently
discloses the treatment of the various stages of Pompe’s disease as recited in claims
2-4, or the disease symptom (cardiomyopathy) recited in claim 21, using human acid
"-glucosidase produced in CHO cells.
Accordingly, Rejection II is reversed.
III. Anticipation and/or Obviousness over Fuller
The examiner argues with respect to claims 1-7, 11-18, 21 and 23, that Fuller
either anticipates or renders obvious the amounts of CHO cell-produced human acid
"-glucosidase “used” [sic, claimed?], the method of administration of said human acid
"-glucosidase, and the intervals at which the enzyme is administered. Answer, p. 5.
The examiner acknowledges that “[i]t is not clearly apparent from the reference if these
limitations are present or not, but it is inherent or in the very least obvious to use the
amount, methods of administration and intervals claimed.” Id.
We have addressed the issue of whether Fuller anticipates, either expressly or
inherently, the claimed invention, supra. With respect to the issue of obviousness, we
point out that it is well established that the examiner has the initial burden under § 103
to establish a prima facie case. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785, 787-88
(Fed. Cir. 1984). It is the examiner’s responsibility to show that some objective teaching
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