Appeal No. 2007-0542
Application No. 10/301,185
trigeminal nerves in the nasal cavity may be an inherent mechanism (in
addition to the absorption along the olfactory neurons) responsible for
transport into the brain, the Examiner has not provided evidence that this
mechanism would have been recognized by the person of ordinary skill in
the art. “That which may be inherent is not necessarily known. Obviousness
cannot be predicated on what is unknown.” In re Spormann, 363 F.2d 444,
448, 150 USPQ 449, 452 (CCPA 1966). See also Rijckaert, at 9 F.3d 1534,
28 USPQ2d 1957. The Examiner’s burden is not discharged by the mere
fact that trigeminal nerves are present in the nasal cavity.
CONCLUSION OF LAW
The Examiner has not shown that Frey provides adequate motivation
to have made it obvious under 35 U.S.C. § 103 to administer NGF or FGF to
a skin region outside the nasal cavity, but innervated by the trigeminal nerve.
We reverse the Examiner’s rejection of claims 45-48, 50, 52, and 53.
REVERSED
Toni R. Scheiner )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Lora M. Green )
Administrative Patent Judge ) APPEALS AND
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) INTERFERENCES
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Richard M. Lebovitz )
Administrative Patent Judge )
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