Appeal 2007-0181
Application 10/057,323
DISCUSSION
The Examiner rejected claims 1-4, 11-13, 37-40, 42, 43, 47, 48, 83,
84, and 86 under 35 U.S.C. § 103(a) as being obvious over the combination
of Rosenblum and Medical Letter (Answer 4). As Appellants do not argue
the claims separately, we focus our analysis on independent claim 1. Merely
pointing out differences in what the claims cover is not an argument as to
why the claims are separately patentable. 37 CFR § 41.37(c)(1)(vii).
Rosenblum is cited for teaching ezetimibe is useful for reducing
cholesterol levels and the risk of atherosclerosis (Answer 4). Medical Letter
is cited for teaching that fenofibrate is useful in reducing serum cholesterol
levels (id.). The Examiner acknowledges that “[t]he references do not
expressly teach a composition containing fenifibrate and ezetimibe
together.” (Id.)
The Examiner concludes, however:
It would have been obvious to one of ordinary skill in the
art at the time the invention was made to incorporate both
ezetimibe and fenofibrate together in a single compostion.
One of ordinary skill in the art would have been
motivated to incorporate both ezetimibe and fenofibrate
together in a single composition. The prior art teaches that both
ezetimibe and fenofibrate as useful in reducing serum
cholesterol individually. Therefore, combining two agents,
which are known to be useful to reduce serum cholesterol
individually, into a single composition useful for the same
purpose is prima facie obvious (See In re Kerkhoven 205 USPQ
1069).
(Answer 4.)
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-
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