Appeal 2007-2864
Application 10/747,798
to 90% or oral cancers have been reported as having HPV DNA, and Flaitz
is cited for teaching that about one-half of oral epithelial dysplasias are
infected with HPV, and that between one-third and one-half of oral
squamous cell carcinoma involves HPV infection (id.). Thus, the Examiner
finds that “one of skill in the art of oral cancer would have been aware that
the treatment of Clayman would necessarily involve treatment of
hyperplastic lesions that comprise HPV infected cells in a substantial
fraction of target patients.” (Id.)
With respect to claims 18, 33, and 54, which require that the
composition be formulated as a douche, the Examiner asserts that “a douche
is simply a jet of liquid applied to a part of the body; so a douche solution is
simply liquid.” (Id.)
In order for a prior art reference to serve as an anticipatory reference,
it must disclose every limitation of the claimed invention, either explicitly or
inherently. In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1432
(Fed. Cir. 1997). We find that Clayman discloses every limitation of the
claimed subject matter. Therefore, the rejection of claims 1-12, 15, 18, 23-
28, 33, 38-48, 51 and 54 is affirmed.
Appellant argues that the Examiner has not established that in
practicing the Clayman method one is inherently practicing the claimed
invention (Br.1 5). According to Appellant, Oda in fact teaches that a
substantial fraction of oral and cervical cancers are not infected with HPV
(id. at 6). Appellant asserts:
1 All references to the Brief (Br.) are to the Supplemental Brief on Appeal,
dated August 23, 2006.
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