Appeal No. 2005-1117
Application 10/078,043
of warts in Eckhouse which, on this record, would reasonably appear to involve the meaningful
suppression of the growth potential of the causal virus at its locus on and in the living organism,
and thus the claimed method encompassed by appealed claims 10 reasonably appears to be
identical to the method of treating warts in Eckhouse. See generally, In re Baxter Travenol
Labs., 952 F.2d 388, 391, 21 USPQ2d 1281, 1284-85 (Fed Cir. 1991) (citing In re Fracalossi,
681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982) ( “anticipation is the ultimate of
obviousness”); see also Spada, 911 F.2d at 708-09, 15 USPQ2d at 1657-58 (“The Board held
that the compositions claimed by Spada ‘appear to be identical’ to those described by Smith.
While Spada criticizes the usage of the word ‘appear,’ we think that it was reasonable for the
PTO to infer that the polymerization by both Smith and Spada of identical monomers, employing
the same or similar polymerization techniques, would produce polymers having the identical
composition.”).
Accordingly, based on our consideration of the totality of the record before us, we have
weighed the evidence of obviousness found in the combined teachings of Eckhouse and Talmore
with appellants’ countervailing evidence of and argument for nonobviousness and conclude that
the claimed invention encompassed by appealed claim 10 would have been obvious as a matter
of law under 35 U.S.C. § 103(a).
The examiner’s decision is affirmed.
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