Appeal No. 2006-0185 Page 9
Application No. 10/159,253
treating wounds (Column 2, lines 19-22) and DiPippo teaches a wound dressing
containing a therapeutic gel. As a result, we agree with the examiner that the
combination of DiPippo and Johnson would have made the product of instant claim 1
obvious to a person of ordinary skill in the art.
Appellant also argues that “one skilled in the art reading Johnson would
reasonably infer that farnesol alone (without the anti-microbial agent) does not inhibit or
destroy any fungus.” Appeal Brief, page 14 (emphasis added).
As we understand it, Appellant presents the same arguments discussed above.
For the same reasons provided, we do not find these arguments persuasive. We agree
with the examiner that the combination of DiPippo and Johnson is obvious.
Claim 1 reads on the product made obvious by DiPippo and Johnson and is
therefore unpatentable. Claims 3-6, 8-24, and 26-57 fall with claim 1. The examiner’s
rejection is affirmed.
Summary
We affirm both rejections of claims 1, 3-6, 8-24, and 26-57 under 35 U.S.C. § 103.
Since our reasoning differs from that of the examiner, however, we designate our
affirmance as a new ground of rejection under 37 CFR § 41.50(b) in order to give
Appellant a fair opportunity to respond.
Time Period for Response
This decision contains a new ground of rejection pursuant to 37 CFR § 41.50(b)
(effective September 13, 2004, 69 Fed. Reg. 49960 (August 12, 2004), 1286 Off. Gaz.
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