Appeal No. 2005-1535
Application No. 10/049,379
concentration is critical.” Answer, page 4. However, the claimed oxaliplatinum
concentration of “at least 7 mg/ml” is not “encompassed” by the Ibrahim prior art range
of 1 to 5 mg/ml, and thus Ibrahim is not evidence to support a prima facie case of
obviousness of the claimed oxaliplatinum concentration of “at least 7 mg/ml”.
Appellants argue that the “concentration range of Ibrahim is not close to the
claimed range.” Reply Brief, page 2. In addition, appellants argue that “the
Examiner’s Answer does not appreciate or properly recognize that a preparation in a
much higher concentration is quite beneficial ... because it significantly reduces the
pharmaceutical preparation volumes and administrations. Reply Brief, page 3.
We do not find the examiner has provided evidence of an oxaliplatinum
composition having a concentration of 7 mg/ml as claimed, or indicated where the cited
references provide one of ordinary skill in the art a reason, suggestion or motivation for
combining the cited references to arrive at that concentration.
Appellants argue, “Schilpalius does not describe or suggest any composition or
method leading to a pharmaceutically stable preparation of oxaliplatinum as claimed in
claim 1 of the subject application. This reference merely describes a method for
obtaining a beta-carotene composition in an emulsified form. See, for example, column
5, lines 41-49 and column 5, line 53 to column 6, line 11 of Schilpalius. This disclosure
is completely unlike the claimed invention. Moreover, there is no motivation or
suggestion in either the primary reference or this secondary reference to combine these
two references and end up with the claimed invention.” Brief, page 12.
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