Appeal No. 2006-1066 Page 9
Application No. 09/810,109
The examiner also rejected claim 1 under 35 U.S.C. § 102(b) over each of von
Borstel4 and Hirotaka.5 Having held that claim 1 is anticipated by both Zappla and
Hata, we need not decide whether this claim is also anticipated by von Borstel or
Hirotaka.
3. Obviousness
The examiner rejected claims 1 and 5-17 under 35 U.S.C. § 103 over the
combination of Zappla and Hata in view of Watkins.6 (Although the Examiner’s Answer
does not list this rejection in its listing of the grounds of rejection, that omission appears
to be a typographical error. Appellant listed this rejection as one of the issues being
presented on appeal and the examiner indicated that Appellant’s statement of the
issues was correct. In addition, the examiner has addressed this rejection in his
response to Appellant’s argument. Therefore, we conclude that this rejection is properly
before us on appeal.)
a) Claims 1, 5-7, 9-11, and 14-17
We have already found that each of Zappla and Hata describes the method of
claim 1. Anticipation is the epitome of obviousness. In re McDaniel, 293 F.3d 1379,
1385-1386, 63 USPQ2d 1462, 1466 (Fed. Cir. 2002). Therefore, we affirm the § 103
rejection of claim 1. Claims 5-7, 9-11, and 14-17 fall with claim 1.
b) Claim 8
With regard to claim 8, the examiner argued that Watkins “bridges the gap
between the obviousness of using CDP instead of CDP-choline, as Watkins teaches
4 von Borstel et al., U.S. Patent No. 5,691,320, issued November 25, 1997.
5 Hirotaka et al., JP 8-183737, published July 16, 1996.
6 Watkins et al., WO 00/06174, published February 10, 2000.
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