Appeal No. 09/975,899 Page 4
Application No. 2006-0292
achieve the same result, i.e., the treatment of the cancer. See id. The examiner
thus concludes that
it would have been obvious to a person of ordinary skill in the art at
the time the invention was made to apply the teachings of [Hallahan
II], Mastrobattista [ ], Patel [ ], and Appellant’s admissions of prior
art set forth in the specification . . . to those of [Hallahan I] and
substitute biomolecular carrier bearing antibodies to one species of
cellular adhesion molecule i.e. P-selectin to another type of
biodegradable polymers or PEGylated copolymers carrier bearing
antibodies to another species of cellular adhesion molecule i.e.
ICAM-1. The expression of any one of said adhesion molecules
would be enhanced in target tissues after irradiation, as taught by
[Hallahan II] and the known prior art disclosed in the Specification. .
. .
One of ordinary skill in the art at the time the invention was
made would have been motivated to do so, because it has been
known for over 15 years that exposure of normal and diseased
tissue to irradiation causes an increase[d] [sic] leukocyte infiltration
and that the key component of this process is the adhesion of
leukocytes to the microvascular endothelium, as taught by the
known fact disclosed in the specification . . . and exposure [of, sic]
tissue to irradiation causes an increase in expression of several
species of cell adhesion molecules including ELAM-1, E-selectin
and ICAM-1, in endothelial cells, as taught by [Hallahan II] and P-
selectin labeled delivery vehicle was used to deliver[ ] [sic] drugs to
target cancer tissue or organ where the expression of this cell
adhesion molecule was increased by exposure [sic] said tissue or
organ to irradiation, as taught by [Hallahan I] and biomolecular
carrier, bearing antibodies to another cell adhesion moleculed
ICAM-1 effectively used to deliver[ ] [sic] drugs to the sites where
the expression of ICAM-1 is increase[d] [sic], as taught by
Mastrobattista [ ].
Id. at 5-6.
The burden is on the examiner to set forth a prima facie case of
obviousness. See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598-99
(Fed. Cir. 1988). “A rejection based on section 103 clearly must rest on a factual
basis, and these facts must be interpreted without hindsight reconstruction of the
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