Appeal No. 2007-1072
Application No. 09/872,250
knowledge generally available to one of ordinary skill in the art would lead
that individual to combine the relevant teachings of the references.’” In re
Fritch, 972 F.2d 1260, 1265, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992)
(citation omitted). An adequate showing of motivation to combine requires
“evidence that ‘a skilled artisan, confronted with the same problems as the
inventor and with no knowledge of the claimed invention, would select the
elements from the cited prior art references 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). “[T]he best defense against
hindsight-based obviousness analysis is the rigorous application of the
requirement for a showing of a teaching or motivation to combine the prior
art references.” Id., 227 F.3d at 1371, 56 USPQ2d at 1073.
Endrikat is drawn to a clinical study “to compare contraceptive
reliability, cycle control, and tolerance of an oral contraceptive containing
20 μg ethinylestradiol (EE2) and 75 μg gestodene (GSD), with a reference
preparation containing a similar dose of gestodene but in combination with
30 μg ethinylestradiol.” Id., abstract. The reference teaches that of the
subjects taking the higher dose of ethinylestradiol, 13.8% reported spotting
in the first cycle, while 22.6% of the subjects taking the lower dose reported
spotting in the first cycle. Id. at 133, col. 2. With respect to breakthrough
bleeding, Endrikat notes that highest incidence was reported by 2.4% of the
subjects in the third 20 μg EE2 cycle and by 2.3% in the first 30 μg EE2
cycle. Id.
Endrikat notes that “the data . . .showed slightly less favorable
bleeding patterns for the 20 μg EE2 preparation,” with the occurrence of
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