Appeal No. 2006-0762 Page 4
Application No. 09/982,113
for combination in the manner claimed.’” Ecolochem, Inc. v. Southern Calif.
Edison Co., 227 F.3d 1361, 1375, 56 USPQ2d 1065, 1076 (Fed. Cir. 2000). We
conclude that the examiner has met the burden of establishing a prima facie case
of obviousness, and the rejection is affirmed.
Appellants argue that Mehta fails to teach or suggest the use of DMPC
and water to form the liposomes used in the liposomal retinoic acid formulations.
See Appeal Brief,1 page 5. According to appellants, in the reference, at column
7, line 54, it is specifically stated that only butanol, and not butanol and water,
was used to form the liposomal retinoid. See id. at 5-6.
The examiner, appellants contend, is improperly relying on “the statement
in Mehta which concerns ‘reconstitution’ of already-formed ‘liposomal retinoic
acid’ in an aqueous solution (see, e.g., col. 7, ln 66 to col. 8, ln3).” Id. at 6.
Appellants assert that “[t]he examiner has not shown resuspending already-
formed liposomes in an aqueous solution results in the introduction of water into
the lipid layer,” arguing that the water would go into the interior of the liposome
and not the lipid bilayer. Id. Appellants assert that “[i]n contrast to the liposomes
of Mehta, the present liposomes actually incorporate water in the lipid bilayer by
virtue of its presence in the starting butanol.” Id. That deficiency, appellants
argue, is not remedied by Ulukaya. See id.
1 All references to the Appeal Brief are to the Amended Appeal Brief, dated November 1, 2004,
and stamped November 3, 2004.
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