Appeal 2007-1615
Application 10/693,442
been obvious to optimize the dosing interval based on empirical observation.
Indeed, Habeck indicates that “the next step will be to take a look at dosing
intervals” (id.).
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). “Often, it will be
necessary for a court to look to interrelated teachings of multiple patents; the
effects of demands known to the design community or present in the
marketplace; and the background knowledge possessed by a person having
ordinary skill in the art, all in order to determine whether there was an
apparent reason to combine the known elements in the fashion claimed” (id.
at 1740-41).
We find that the Examiner has established that the combined
teachings of the cited references, all of which pertain to the appetite
suppressive effects of the Hoodia gordonii plant, and at least some of which
correlate that appetite suppressive effect with weight loss, would have
provided a reason for one of ordinary skill in the art to administer Hoodia
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