Appeal 2007-3216
Application 10/271,433
M7. The wipes can be used to treat vaginal yeast infections (Mitra, at col.
10, ll. 55-57; see Answer 6).
ISSUE ON APPEAL
The Examiner contends that it would have been obvious to one of
ordinary skill in the art to have added the antimicrobial agent of Mitra to the
douche of Brown-Skrobot to achieve the claimed invention (Answer 4).
Appellants contend there is no suggestion or motivation to incorporate
Mitra’s topical composition into Brown-Skrobot’s douche (App. Br. 7).
The issue in this appeal is whether the Examiner erred in concluding
the claimed invention would have been obvious over Brown-Skrobot in view
of Mitra.
DISCUSSION
The Examiner bears the initial burden of showing unpatentability. See
In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993).
To support a conclusion that a claim would have been obvious, it must be
shown that all the claimed elements were known or obvious in view of the
prior art and that a person of ordinary skill in the relevant field would have
had reason “to combine the elements in the way the claimed new invention
does.” KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d
1385, 1396 (2007).
After finding all the elements of claim 1 in the prior art (see Answer
3-4; Findings of Fact (“FF”) B3 and M2-M7), the Examiner concludes that
“[i]t would have been obvious to one of ordinary skill in the art at the time
of the invention to add the antimicrobial agents of Mitra et al. to the
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