Appeal No. 2007-0091
Application No. 09/765,491
the rejection of claim 10 as obvious in view of Aggarwal. Claims 11, 12,
and 18 fall with claim 10.
6. OBVIOUSNESS: CLAIMS 10-12 AND 19
Claims 10-12 and 19 stand rejected under 35 U.S.C. § 103 as obvious
over Arbiser,9 Thaloor,10 and Aggarwal. As noted above, claims 10-12 and
19 were not argued separately and therefore stand or fall together. Since we
have already determined that claim 10 would have been obvious in view of
Aggarwal alone, we agree with the Examiner that claim 10 would have been
obvious in view of Arbiser, Thaloor, and Aggarwal.
Appellant argues that “[t]here is no disclosure or suggestion in Arbiser
1998 of the formulation used in claim 10. Neither Thaloor nor Agg[ar]wal
make up this deficiency.” (Reply Br. 10.)
This argument is unpersuasive because, for the reasons discussed
above, Aggarwal would have suggested the formulation recited in claim 10.
9 In the Answer, Arbiser is cited as follows: “Arbiser et al. ‘The
antiangiogenic agents TNP-470 and 2-methoxyestradiol inhibit the growth
of angiosarcoma in mice’. J. Am. Acad. Dermatol., 1999, June; 40 (6t
1):925-9.” As Appellant recognized, “it appears that the Examiner is
discussing the subject matter of Arbiser, et al., Molecular Medicine,
4(3):191-195 (1998) (‘Arbiser 1998’).” (Reply Br. 10.) We agree with
Appellant that the Examiner’s rejection relies on Arbiser 1998, not the
Arbiser 1999 reference cited in the Answer. Arbiser 1998 was cited in the
Form PTO-892 that accompanied the Office action mailed Nov. 4, 2003.
Since Appellant appreciated the correct basis of the rejection and responded
to it in the Reply Brief, we see no need to remand the application for the
Examiner to clarify the record.
10 Thaloor et al., “Inhibition of angiogenic differentiation of human
umbilical vein endothelial cells by curcumin,” Cell Growth &
Differentiation, Vol. 9, pp. 305-312 (1998).
12
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