Appeal 2007-2864
Application 10/747,798
Claims 16, 17, 31, 32, 52, and 53 stand rejected under 35 U.S.C. §
103(a) as being obvious over RAC as evidenced by Oda and Flaitz, or El-
Deiry, as further combined with Zhang. The rejection, to the extent it is
based on El-Deiry and Zhang, is reversed for the reasons discussed above.
RAC is relied upon as above (Answer 9). According to the Examiner,
RAC describes “liquid compositions for oral delivery of the vector, but
[does not] describe inclusion of a flavorant in the composition.” (Id.)
Zhang is relied upon for teaching oral pharmaceutical compositions
comprising an adenoviral vector, wherein the composition may include a
flavorant (id.). The Examiner concludes that it would have been obvious to
include a flavorant, such as peppermint or wintergreen oil, in the oral
pharmaceutical compositions of RAC as the inclusion of a flavorant
improves the palatability of the composition.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993) (citations omitted). In order to
determine whether a prima facie case of obviousness has been established,
we consider the factors set forth in Graham v. John Deere Co., 383 U.S. 1,
17 (1996): (1) the scope and content of the prior art; (2) the differences
between the prior art and the claims at issue; (3) the level of ordinary skill in
the relevant art; and (4) objective evidence of nonobviousness, if present.
Appellant argues that the Examiner has failed to establish a prima
facie case of obviousness as Zhang fails to remedy the deficiencies of RAC
(Br. 15-16). Appellant’s argument is not found to be convincing as we have
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