Appeal No. 2005-0545
Application No. 09/989,019
cellulitis. Soudant teaches compositions for topical treatment of
cellulitis which may contain “lipolytic agents such as for example
xanthines, particularly caffeine, or . . . carnitine . . . (Soudant,
col. 2, l. 29-34 (emphasis added)). The lipolytic agents stimulate
lipolytic activity by inhibiting the action of phosphodiesterase
(Soudant, col. 2, l. 3-24). Koulbanis also teaches topically
applied compositions for treatment of cellulitis which contain
xanthic bases such as theophylline, caffeine and theobromine which
promote lipolysis activity by inhibiting phosphodiesterase activity
(Koulbanis, col. 1, l. 34-50; col. 2, l. 56-62).
Discussion
The criterion for establishing a prima facie case of
obviousness under 35 U.S.C. § 103 in view of combined prior art
teachings “is not the number of references, but what they would have
meant to a person of ordinary skill in the field of the invention.”
In re Gorman, 933 F.2d 982, 986, 18USPQ2d 1885, 1888 (Fed. Cir.
1991). Gorman instructs at 986, 18 USPQ2d at 1888:
[W]hether a new combination of known elements would have
been obvious to one of ordinary skill depends on various
facts, including whether the elements exist in “analogous
art”, that is, art that is reasonably pertinent to the
problem with which the inventor is concerned. . . . When
the references are all in the same or analogous fields,
knowledge thereof by the hypothetical person of ordinary
skill is presumed . . . and the test is whether the teachings
of the prior art, taken as a whole, would have made obvious
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