Appeal 2007-2834
Application 09/943,048
individually used for the treatment of arthritis,” the Examiner concludes that
it would have been obvious to combine those ingredients, “each of which is
taught by [the] prior art to be useful for same purpose; [the] idea of
combining them flows logically from their having been individually taught
in the prior art. The combination of active ingredient with the same
character is merely the additive effect of each individual component” (id. at
7, citing In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980)).
Appellants argue that the cited combination of references fails to
demonstrate the claims’ obviousness because Langhoff discloses that low
dose aspirin has an anti-arthritis benefit only when co-administered with an
ω-3-unsaturated fatty acid, vitamin E, and vitamin C (Br. 9-14),1 and
because “Shapiro teaches that the disclosed flavonoids, flavanoids and
isoflavones as antioxidants are useful in treating [] inflammatory disease
only in combination with carbonyl trapping agents” (id. at 20).
As stated in In re Oetiker, 977 F.2d 1443, 1445-1446 (Fed. Cir. 1992):
[T]he examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of
unpatentability. If that burden is met, the burden of coming
forward with evidence or argument shifts to the applicant.
. . . .
[T]he conclusion of obviousness vel non is based on the
preponderance of evidence and argument in the record.
The test of obviousness is “whether the teachings of the prior art,
taken as a whole, would have made obvious the claimed invention.” In re
Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991). Thus, “‘[i]t is impermissible
1 Appeal Brief filed (August 29, 2006).
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