Appeal No. 2005-1535
Application No. 10/049,379
they allow to dissolve, at least a part of the oxaliplatinum but they are
available on the market at a prohibitive price to be used as solvents. A
wide range of surfactants, in particular Tween 20, Tween 60 and Tween
80 have shown to be ineffective to make oxaliplatinum soluble.
Specification, page 4.
Obviousness
Claims 1-11 and 15-17 stand rejected under 35 U.S.C. §103(a) over Ibrahim and
Schlipalius.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established when the teachings from the prior art would have suggested the claimed
subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d 781, 783, 26
USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires that the prior
art both suggest the claimed subject matter and provide a reasonable expectation of
success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488, 493, 20
USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze the prior
art applied by the examiner in the rejection of the claims on appeal.
According to the examiner,
Ibrahim et al. teach a solution of oxaliplatinum and water for
administration through injection of infusion (see reference column 2, lines
9-19). The concentration of the oxaliplatinum is from 1 to 5 mg/ml (col. 2,
lines 9-19). The solution can be sealed in a vial infusion pouch, an
ampoule or carried in an injection micropump (col. 2, lines 54-63). The
method of preparation is recited in Example 1 at Column 3. Ibrahim et al.
4
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