Appeal 2007-3390
Application 10/143,915
As discussed above, the device used in Kim’s method for transdermal
administration of vitamin C utilizes both electrical potential energy
(iontophoresis) and ultrasonic waves (sonophoresis). Claim 4 does not
exclude this combination. Accordingly, we are not persuaded by
Appellants’ assertion that Kim “only teaches applying a vitamin C
composition to the skin, and enhancing its penetration with iontophoresis”
(Br. 6).
While Appellants recognize that “the Examiner is correct that Spencer
teaches that sonophoresis is known to be similarly useful as iontophoresis,
Appellant[s] respectfully disagree[] that there is any suggestion in Spencer,
Kim et al., or any other prior art of record for substituting the sonophoresis
teaching of Spencer into the iontophoresis teachings of Kim et al.” (Br. 6.)
We find, however, that a substitution of sonophoresis for iontophoresis is not
required in this instance. On this record, the Examiner has established that
iontophoresis and sonophoresis are both known to enhance the skin’s
absorption of topical actives (Answer 4). Appellants agree with this finding
(Br. 6). In this regard, the Examiner relies on Kim, which teaches a method
for transdermal administration of vitamin C that utilizes both iontophoresis
and sonophoresis. Accordingly, no modification of Kim’s method or device
is necessary. See KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82
USPQ2d 1385, 1397 (2007) (“In determining whether the subject matter of a
patent claim is obvious, neither the particular motivation nor the avowed
purpose of the patentee controls. What matters is the objective reach of the
claim. If the claim extends to what is obvious, it is invalid under § 103.”)
Therefore, we are not persuaded by Appellants’ argument to the contrary.
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