Ex Parte MORADIAN-OLDAK et al

Patent Trial and Appeal Board

Sep 17, 2018

14142086 (P.T.A.B. Sep. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/142,086 12/27/2013
22045 7590 09/19/2018
BROOKS KUSHMAN P.C.
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Janet MORADIAN-OLDAK
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
USC01 l 8PUSP 7905
EXAMINER
WEBB, WALTERE
ART UNIT PAPER NUMBER
1612
NOTIFICATION DATE DELIVERY MODE
09/19/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
docketing@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JANET MORADIAN-OLD AK
and QICHAO RUAN 1
Appeal2017-000969
Application 14/142,086
Technology Center 1600
Before ULRIKE W. JENKS, ROBERT A. POLLOCK, and
TA WEN CHANG, Administrative Patent Judges.
CHANG, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
composition for treating dental caries, early dental carious and erosive
lesions, and enamel defects resulting from genetic diseases, which have been
rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the University of Southern California as the real party
in interest. (Appeal Br. 2.)
Appeal2017-000969
Application 14/142,086
STATEMENT OF THE CASE
"Enamel is the exterior layer of the mammalian tooth. . . . Mature
enamel is non-living and cannot regenerate itself after substantial mineral
loss, which often occurs as dental caries or erosion." (Spec. ,r 5.) According
to the Specification, "conventional treatments for carious lesions include
refilling with amorphous materials like amalgam, ceramics or composite
resin," but secondary caries often arise after such treatments "at the interface
between the original enamel and filling materials due to weakened adhesion
with time." (Id.) The Specification states that "[t]he present invention
solves one or more problems of the prior art by providing a composition for
re-constructing enamel-coated substrates," which "[a]dvantageously ...
produce enamel-like materials that contain nano- and microstructures using
amelogenin to control the crystallization of biomimetic calcium and
phosphate." (Id. ,r 8.) The Specification describes amelogenin as "closely
related polypeptides involved in the formation of enamel .... exemplified
by SEQ ID Nos: 1-8 [and] .... alternatively spliced isoforms such as LRAP
(leucine rich amelogenin polypeptide)." (Id. ,r 24).
Claims 1-15 are on appeal. Claim 1 is illustrative and reproduced
below:
1. A composition for treating dental caries, early
dental carious and erosive lesions, and enamel defects resulting
from genetic diseases, the composition comprising:
an amelogenin;
a chitosan;
water; and
a sufficient amount of a pH adjusting component
such that the composition has a pH greater than about 6.0, the
composition forming an organized mineral layer when
contacting an enamel surface.
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(Appeal Br., Claims App. 1.)
The Examiner rejects claims 1-9 and 13-15 under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Kamiya2 and Davison. 3 (Ans. 2.)
The Examiner rejects claims 1-15 under pre-AIA 35 U.S.C. § I03(a)
as being unpatentable over Gestrelius4 and Davison. (Ans. 4.)
I.
Issue
The Examiner has rejected claims 1-9 and 13-15 as obvious over
Kamiya and Davison. The Examiner finds that Kamiya suggests a
composition meeting all of the limitations of claims 1-9 and 13-15, except
Kamiya does not teach a chitosan as part of its composition. (Ans. 2-3.)
The Examiner finds, however, that Davison teaches a chitosan composition
having "improved effect on the inhibition of cariogenic bacteria[, which
when] combined with its pH buffering capacity make the chitosan
compositions very effective in prevention of dental caries." (Id. at 3
( emphasis, internal quotation marks, and citation omitted).) The Examiner
concludes "combining the amelogenin of Kamiya ... with the chitosan of
Davison ... as claimed in the instant invention would have been prima facie
obvious since they are both taught to be useful for treating dental caries" and
"it is prima facie obvious to combine two compositions each of which is
taught by the prior art to be useful for the same purpose in order to form a
third composition that is to be used for the very same purpose." (Id. at 4.)
2 Kamiya et al., JP 2012-167040 A, published Sept. 6, 2012 ("Kamiya").
Citations to Kamiya in the opinion refers to the translation by Schreiber
Translations, Inc. dated July 2016 and made of record on Aug. 12, 2018.
3 Davison et al., US 2003/0104020 Al, published June 5, 2003 ("Davison").
4 Gestrelius et al., US 7,294,352 B2, issued Nov. 13, 2007 ("Gestrelius").
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Appellants contend that the combination of Kamiya and Davison does
not teach a composition that forms an organized mineral layer when
contacting an enamel surface, as required by claim 1. ( Appeal Br. 2-3.)
Appellants further contend that the subject matter of the claims exhibits
unexpected results. With respect to claim 7, Appellants also contend that the
claim is independently allowable because it specifically claims a
composition comprising leucine rich amelogenin polypeptide (LRAP) and
chitosan.
Appellants do not separately argue the claims other than claim 7. We
therefore limit our analysis to claims 1 and 7. The issue with respect to this
rejection is whether a preponderance of the evidence of record supports the
Examiner's conclusion that claims 1 and 7 are obvious over the combination
of Kamiya and Davison and, if so, whether Appellants have provided
evidence of unexpected results that, when considered together with evidence
of obviousness, shows claims 1 and 7 to be nonobvious.
Findings of Fact
1. Kamiya relates to "an enamel regenerating liquid and an enamel
regenerating kit which are useful for causing the recalcification of enamel in
the living body, thereby treating the initial dental caries and preventing
dental caries." (Kamiya ,r 9; see also id. ,r 1.)
2. Kamiya teaches that its enamel regenerating liquid is
"characterized by containing an amelogenin, a calcium ion and a phosphate
ion." (Id. ,r 10; see also id. ,r,r 26, 39.)
3. Kamiya teaches that its enamel regenerating liquid "may be
obtained by adding a calcium salt, a phosphoric acid salt, and amelogenin to
water." (Id. ,r 39.)
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4. Kamiya teaches that "it is preferred that a pH adjusting agent
for adjusting the pH to be near the neu[t]ral point should be contained." (Id.
,r 15; see also id. ,r 37 (describing neutral pH as pH 6.0 to 8.0).)
5. Kamiya teaches that, in the enamel regenerating liquid
according to its invention,
an amelogenin is accumulated on the surface of enamel,
thereby creating a space. On the space, a calcium ion and
a phosphate ion are accumulated, thereby creating a local
supersaturation, and a reaction between the calcium ion
and the phosphate ion is promoted, resulting in a
hydroxyapatite crystal being grown.
(Id. ,r 23; see also id. ,r,r 26-29.)
6. Kamiya teaches that, "by the effect of the amelogenin, it is
assumed that the crystal form is controlled." (Id. ,r 29; see also id. ,r 31.)
7. Davison teaches compositions comprising nano-sized chitosan
that present improved bioactivity, solubility and other properties over
traditional chitosan. (Davison ,r 1; see also id. ,r 9.)
8. Davison teaches that its composition is "capable of producing
fully homogeneous formulations in the critically important physiological pH
region, for example from about 5 to about 7." (Id. ,r 10; see also id. ,r,r 17
(stating that the chitosan of its invention is "soluble in aqueous solution
having a pH between about 1 and about 6.3"), 28 (stating that "[i]n a
preferred process embodiment, the solution is partially neutralized up to the
point in which the solution becomes a precipitate suspension, the pH
preferably being the range of from about 6.5 to about 7 .5, more preferably
from about 6.7 to about 7.1").)
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9. Davison teaches that,
[ d]ue to the improve anti-microbial, substantivity, film
forming and solubility properties of the chitosan
compositions as well as the excellent safety profile and
natural origin the chitosan compositions are suitable for
use in oral and denture care including improvement of
general gum and teeth health, treatment of halitosis and
gingivitis, stain reduction, and for providing anti-caries,
anti-plaque and anti-calculus benefits, in humans or other
animals. It has been found that the chitosan compositions
used herein have improved effect on the inhibition of
cariogenic bacteria such as Streptococcus mutans this
effect combined with its pH buffering capacity make the
chitosan compositions very effective in prevention of
dental caries.
(Id. ,I 117.)
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art as they relate to claims 1 and 7 (Final Act.
3--4, 5---6; see also Ans. 2--4, 6-9; FF1-FF9) and agree that claims 1 and 7
are obvious over Kamiya and Davison. We address Appellants' arguments
below.
Claim 1
Appellants contend that the "organized mineral layer" recited in claim
1 is "different tha[ n] any mineral layer formed by the composition of
Kamiya and Davison and, therefore, cannot be inferred from their
combination." (Appeal Br. 2-3.)
We are not persuaded. As an initial matter, we find that the Examiner
has shown that the composition suggested by the combination of Kamiya
and Davison is substantially identical to the claimed composition. Thus, we
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find that the burden shifts to Appellants to show that the composition
suggested by the prior art does not "necessarily or inherently possess the
characteristic[]" of "forming an organized mineral layer when contacting an
enamel surface." In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Appellants
have not provided evidence sufficient to satisfy this burden. As to
Appellants' argument that the "organized mineral layer" cannot be inferred
from Kamiya and Davison, we note that "'the mere recitation of a newly
discovered function or property, inherently possessed by things in the prior
art, does not cause a claim drawn to those things to distinguish over the prior
art."' Id. at 1254 (quoting In re Swinehart, 439 F.2d 210, 212-13 (CCPA
1971)).
In addition, Kamiya teaches that application of its amelogenin
composition results in hydroxyapatite crystal being grown and further
teaches that, "by the effect of the amelogenin, it is assumed that the crystal
form is controlled." (FF5, FF6.) Appellants do not persuasively explain
why such controlled hydroxyapatite crystal formation does not meet the
limitation of "forming an organized mineral layer" as recited in claim 1.
Appellants next contend that the subject matter of claim 1 exhibits
unexpected results. First, citing the Oldak Declaration, 5 Appellants contend
that the composition of claim 1 "is found to remineralize exposed dentinal
tubules, a type of dental lesion that is distinct from dental caries and for
which remineralization is practically unknown," and further contend that
"compositions of the present invention are capable of re-mineralizing
enamel to a hardness value much higher than the prior art." (Appeal Br. 3,
5 Declaration of Janet Moradian-Oldak under 37 C.F.R. § 1.132 (July 29,
2015) ("Oldak Deel.").
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5---6; see also Reply Br. 2.) Citing paragraphs 53 and 54 of the Specification,
Appellants also argue that the Examiner "neglects the beneficial interaction
[between] amelogenin and chitosan that is spectroscopically verified" and
argue that such pH dependent interaction is advantageous to the robustness
of the remineralization induced by the claimed compositions. (Appeal Br.
3--4; see also Reply Br. 2.)
We are not persuaded. As the Examiner points out, Kamiya teaches
remineralization by amelogenin. (Ans. 7.) Appellants have provided no
persuasive evidence that, in light of the known remineralizing property of
amelogenin, it is unexpected for a composition comprising amelogenin and
chitosan to remineralize exposed dentinal tubules or to remineralize enamel
to a high degree of hardness. 6
As an initial matter, while the Oldak Declaration states that "the
present invention unexpectedly facilitate remineralization of dentin and
exposed dentinal tubules" and "provide unexpected hardness approaching
that of sound enamel" (Oldak Deel. 1, 2 (emphasis added)), we accord such
conclusory statements little weight. See Velander v. Garner, 348 F.3d 1359,
1371 (Fed. Cir. 2003) (explaining that according little weight to broad
conclusory statements in expert testimony that are unsupported by
corroborating references is within the discretion of the trier of fact).
6 To the extent Appellants are not arguing unexpected results but rather that
the Examiner has not established a prima facie case of obviousness because
the combination of Kamiya and Davison does not disclose remineralizing
dentin and dentin tubules (see, e.g., Appeal Br. 7), we are similarly
unpersuaded because the claims do not require remineralization of dentin
and dentin tubules.
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Similarly, with respect to the remineralization of dentin and exposed
dentinal tubules, the Oldak Declaration appears to only compare the efficacy
of Leucine Rich Amelogenin Polypeptide (LRAP)-chitosan hydro gel with
that of a chitosan-only control. (Oldak Deel. 1-2.) However, "when
unexpected results are used as evidence of nonobviousness, the results must
be shown to be unexpected compared with the closest prior art." In re
Baxter Travenol Labs., 952 F.2d 388,392 (Fed. Cir. 1991). In this case, the
data presented in the Oldak Declaration and cited by Appellants does not
compare the claimed composition to the composition taught by Kamiya, i.e.,
a composition comprising amelogenin.
Appellants contend in the Appeal Brief that "[i]t is ... clear that
amelogenin does not have the ability to re-mineralize dentinal tubules" and
that "Appellants are not aware of any reference establishing that amelogenin
can remineralize dentinal tubule." (Appeal Br. 5---6.) Appellants further
contend that Kamiya's compositions are "unlikely to be capable of re-
mineralizing dentinal tubules" because it does not include chitosan and thus
lacks scaffold that holds amelogenin in place as well as pH dependent
interactions involving chitosan. (Id.) We are not persuaded by these
attorney arguments, which cannot substitute for evidence. Johnston v. IVAC
Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989).
As the Examiner also points out, while the Oldak Declaration only
provided data for one amelogenin/chitosan composition (Leucin-rich
amelogenin protein (LRAP)-chitosan hydrogel) with respect to
remineralization of dentin and exposed dentinal tubules, claim 1 is not
limited to LRAP-chitosan hydrogel. (Ans. 8.) Evidence of unexpected
results must be commensurate with the scope of the claim. In re Lindner,
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457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972). Appellants have not
provided "an adequate basis to support the conclusion that other
embodiments falling within the claim[, e.g., compositions comprising other
amelogenins,] will behave in the same manner" as the LRAP-chitosan
hydrogel tested. In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011).
Finally, the data in the Oldak Declaration regarding the allegedly
unexpected hardness provided by the claimed invention suffers from similar
defects in that it fails to show results that are unexpected as compared to the
closest prior art, i.e., Kamiya's composition comprising amelogenin, because
the comparison was to a chitosan-only control. (Oldak Deel. 2.)
We are likewise unpersuaded by Appellants' arguments regarding the
allegedly synergistic effect of combining chitosan and amelogenin. "[I]t is
well settled that unexpected results must be established by factual evidence.
'Mere argument or conclusory statements in the specification does not
suffice."' In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984)). In this case, the passages
of the Specification cited by Appellants are conclusory and speculative,
stating only that
[t]he potential advantage of having chitosan present on the
enamel surface is that the amino group of chitosan could
capture the hydrogen ions from the acid, forming a
positive protective layer to prevent the diffusion of
hydrogen ions to the mineral surface, as well as interacting
with amelogenin to avoiding amelogenin loss into the
saliva. When normal pH is restored (to the range of 6.3-
7.0) by the saliva, the weakly-interacting amelogenin
would be released from the chitosan to regulate the
remineralization of enamel.
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(Spec. ,r 54 ( emphasis added); see also Appeal Br. 3--4.) Appellants point to
insufficient persuasive factual evidence, however, to show that the
combination of chitosan and amelogenin in fact resulted in synergistic effect.
Furthermore, assuming for the sake of argument that such synergism exists,
"[ s ]ynergism, in and of itself, is not conclusive of unobviousness in that
synergism might be expected." In re Kollman, 595 F.2d 48, 55 n.6 (CCPA
1979). Appellants have cited insufficient persuasive evidence that any
alleged synergism is unexpected. For instance, both the pH buffering and
film forming properties of chitosan, as well as the effect of these properties
on the prevention of dental caries and/or plaque and tartar control, are
known in the art. (FF9.)
Claim 7
Appellants argue that claim 7 is independently patentable because
claim 7 depends from claim 1 and specifically claims a composition wherein
the amelogenin is a leucine rich amelogenin polypeptide (LRAP). (Appeal
Br. 7.) While we agree that Appellants' data regarding allegedly unexpected
results is more commensurate with the scope of claim 7, we remain
unpersuaded that the subject matter of claim 7 exhibits unexpected results
for the other reasons already discussed above with respect to claim 1.
Accordingly, we affirm the Examiner's rejection of claims 1 and 7.
Claims 2-6, 8, 9 and 13-15, which are not separately argued, fall with claim
1. 37 C.F.R. § 4I.37(c)(l)(iv).
II.
Issue
The Examiner has rejected claims 1-15 as obvious over Gestrelius
and Davison. The Examiner finds that Gestrelius suggests each limitation of
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the claims, except that Gestrelius "does not teach chitosan as a compound
having a caries preventative effect." (Ans. 4--5.) The Examiner finds,
however, that Davison teaches a chitosan composition having "improved
effect on the inhibition of cariogenic bacteria[, which when] combined with
its pH buffering capacity make the chitosan compositions very effective in
prevention of dental caries." (Id. at 5 (emphasis, internal quotation marks,
and citation omitted).) The Examiner concludes that it would have been
obvious to a skilled artisan at the time of the invention "to combine the
chitosan of Davison with the amelogenins of Gestrelius ... since Gestrelius
... teaches combining other compounds that have caries preventive effect"
and "the chitosan of Davison ... is taught to have an improved effect on the
inhibition of cariogenic bacteria." (Id. at 6.)
Appellants contend that the combination of Gestrelius and Davison
also does not "suggest the beneficial interaction between amelogenin and
chitosan or the ability of the present invention to remineralize exposed
dentinal tubules." (Appeal Br. 8.) Thus, Appellants contend that the subject
matter of the claims exhibits unexpected results. (Id.) Appellants further
contend that a skilled artisan would not "logically combine Davison with
Gestrelius to obtain a re-mineralization composition for treating dental
lesions." (Id.) With respect to claim 7, Appellants also contend that the
claim is independently allowable because it specifically claims a
composition comprising leucine rich amelogenin polypeptide (LRAP) and
chitosan.
Appellants do not separately argue the claims other than claim 7. We
therefore limit our analysis to claims 1 and 7. The issue with respect to this
rejection is whether a preponderance of the evidence of record supports the
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Examiner's conclusion that claims 1 and 7 are obvious over the combination
of Gestrelius and Davison and, if so, whether Appellants have provided
evidence of unexpected results that, when considered together with evidence
of obviousness, shows claims 1 and 7 to be nonobvious.
Findings of Fact
10. Gestrelius teaches "the use of an active enamel substance for
the prevention of or treatment of bacterial growth on a body surface such as
the skin, a mucosal surface or a nail or a tooth surface." (Gestrelius 8:38-
41; see also id. at 15:28-31 (teaching that enamel matrix, matrix derivative
and/or matrix protein may be used for curative as well as preventive
purposes).)
11. Gestrelius teaches that "[ t ]he enamel matrix, enamel matrix
derivatives and/or enamel matrix proteins may be used for the treatment of
an infection caused by bacteria together with or without the presence of an
antimicrobial." (Id. at 8:45--48; see also id. at 15:31-39 (teaching that
enamel matrix, matrix derivative and/or matrix protein may be used with
other active drug substances such as anti-bacterial substance), 20:8-11
(teaching that "[i]n ... dental care preparations, the active enamel substance
may be formulated together with one or more other compounds which have
a caries preventive effect").)
12. Gestrelius teaches that, "[in] a specific embodiment of the
invention, the infection is present in the oral cavity and the infection may be
a bacterial condition." (Id. at 9:45--47.) Gestrelius teaches that "[o]ral
bacteria to be contact inhibited or otherwise combat[ t Jed ... include bacteria
causing caries, e.g., Streptococcus mutans." (Id. at 9:45-51; see also id. at
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17 :3----6 ( stating that composition of its invention "may advantageously be
applied to teeth or tooth roots for the prevention of caries and/or plaque").)
13. Gestrelius teaches that "[ e ]xamples of proteins for use
according to the invention are amelogenins." (Id. at 11 :45--46.)
14. Gestrelius teaches that enamel matrix protein ("EMD") has a
significant inhibitory effect on the adherence of S. mutans to glass surfaces,
that "[a] possible explanation for this inhibition might be the presence of
hydrophobic compounds in the EMD mixture," and that "[ o ]ne of the
proteins abundantly present in the mixture is amelogenin, a protein that
contains, besides an acidic hydrophilic C-terminal sequence, a hydrophobic
core containing 100-300 residues enriched in pro line, leucine, methionine
and glutamine." (Id. at 30:37--45.)
15. Gestrelius teaches that pharmaceutical composition of its
invention may comprise pharmaceutically or cosmetically acceptable
excipients, including solvents such as water. (Id. at 17:26-29, 18: 12-18; see
also id. at 21: 3-12 ( teaching that compositions for oral use may be in a form
"suitable for preparation of an aqueous suspension by addition of a liquid
medium such as, e.g., an aqueous medium").)
16. Gestrelius teaches that,
[i]n a toothpaste or mouthwash formulation or other formulation for
application to teeth or tooth roots, the active enamel substance may
either be present in a dissolved state in a vehicle of slightly acid pH or
as a dispersion in a vehicle of neutral pH. It is anticipated that in use
the active enamel substance may form a protective layer on the
surface of the teeth, thereby preventing the attachment of caries
producing bacteria.
(Id. at 20: 1-8.)
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17. Gestrelius teaches that "[ s Jui table compositions for use
according to the invention may also be presented in the form of suspensions,
emulsions or dispersions" and that suitable suspending agents include
chitosans. (Id. at 20:38--40, 56-61.)
Analysis
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art as they relate to claims 1 and 7 (Final Act.
4--6; Ans. 4--10; FFl-FFl 7) and agree that claims 1 and 7 are obvious over
Gestrelius and Davison. We address Appellants' arguments below.
Appellants contend that the invention is nonobvious over the
combination of Gestrelius and Davison "[ f]or the same reasons set forth
above with respect to the combination of Kamiya and Davison," namely
because the "combination does not suggest the beneficial interaction
between amelogenin and chitosan or the ability of the present invention to
remineralize exposed dentinal tubules." (Appeal Br. 8.) We are not
persuaded for the same reasons already discussed above with respect to the
rejection over Kamiya and Davison. 7
Appellants also contend that "the present invention is not directed to
compositions for preventing dental caries as disclosed by Davison" and that,
"[i]nstead, claims 1-15 are directed towards treating dental lesions."
(Appeal Br. 8.) Appellants contend that, accordingly, a skilled artisan
"would not logically combine Davison with Gestrelius to obtain a re-
7 Appellants also argue that claim 7 is independently patentable over
Grestrelius and Davison because it specifically recites leucine rich
amelogenin peptide (LRAP). (Appeal Br. 8-9.) We are not persuaded by
these arguments for the same reasons already discussed above with respect
to the rejection over Kamiya and Davison.
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mineralization composition for treating dental lesions since Davison does
not teach that chitosan is involved in remineralization." (Id.)
We are not persuaded. To the extent Appellants are contending that
the claims are limited to treatment of dental lesions rather than dental caries,
we note that claim 1 recites "[a] composition for treating dental caries, early
dental carious and erosive lesions, and enamel defects resulting from genetic
diseases." (Appeal Br., Claims App. 1 (emphasis added).) To the extent
Appellants contend that there is a difference between "treating" and
"preventing" dental caries, we note that Gestrelius teaches that its invention
may be used for curative as well as for preventative purposes. (FFlO.)
More importantly, we note that, "[i]n determining whether the subject
matter of a patent claim is obvious, neither the particular motivation nor the
avowed purpose of the patentee controls. . . . [ A ]ny need or problem known
in the field of endeavor at the time of invention and addressed by the patent
can provide a reason for combining the elements in the manner claimed."
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 419--20 (2007). In this case,
skilled artisans would have reason to combine Gestrelius and Davison in
order to prevent and/or treat dental caries, regardless of whether they would
have had reason to combine the references for purposes of obtaining a
remineralization composition for treating dental lesions.
Accordingly, we affirm the Examiner's rejection of claims 1 and 7.
Claims 2-6, 8-15, which are not separately argued, fall with claim 1. 37
C.F.R. § 4I.37(c)(l)(iv).
SUMMARY
For the reasons above, we affirm the Examiner's decision rejecting
claims 1-15.
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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