KING SAUD UNIVERSITY

Patent Trials and Appeals Board

Feb 18, 2021

2020002521 (P.T.A.B. Feb. 18, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/475,114 03/30/2017 EBTESAM MOHAMMED AL OLAYAN 32809.52 5219
37833 7590 02/18/2021
Richard C. Litman
Nath, Goldberg & Meyer
112 S. West Street
Alexandria, VA 22314
EXAMINER
LIU, SUE XU
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
02/18/2021 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):
litman@4patent.com
tharkins@nathlaw.com
uspto_nva@nathlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte EBTESAM MOHAMMED AL OLAYAN,
MANAL AHMED GASMELSEED AWAD,
MUZZAMMIL IQBAL SIDDIQUI, and
NADA MOHAMMED MERGHANI
__________

Appeal 2020-002521
Application 15/475,114
Technology Center 1600
__________

Before ERIC B. GRIMES, FRANCISCO C. PRATS, and
DEBRA L. DENNETT, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 2, 5–8, 10, and 11. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant states that “[t]he real party in interest in this
Appeal is the Applicant: KING SAUD UNIVERSITY, RIYADH, SAUDI
ARABIA.” Appeal Br. 3.
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STATEMENT OF THE CASE
The sole rejection before us for review is the Examiner’s rejection of
claims 1, 2, 5–8, 10, and 11 under 35 U.S.C. § 103 as being unpatentable
over Atta,2 Lamb,3 El-Sherbiny,4 Allahverdiyev,5 European Medicines,6 and
Roy.7 Final Act. 2–5 (entered March 7, 2019).
Appellant’s claims 1 and 6 are the independent claims on appeal, and
read as follows:
1. A method of preparing silver nanoparticles from the gum
extract of the Commiphora molmol plant (myrrh) for treating
epidermal lesions caused by Leishmania major, consisting of:
preparing an extract of myrrh gum extract of the
Commiphora molmol plant;
providing an aqueous solution including a metal salt,
wherein the metal salt is silver nitrate (AgNO3); and

2 Ayman M. Atta et al., Electrochemical behaviour of Mild Steel in Acidic
Medium Based on Eco-Friendly Stabilized Monodisperse Silver
Nanocomposite, 9 INT. J. ELECTROCHEM. SCI. 8226–8238 (2014).
3 T.J. Lamb et al., Co-infected C57BL/6 mice mount appropriately polarized
and compartmentalized cytokine responses to Litomosoides sigmodontis and
Leishmania major but disease progression is altered, 27 PARASITE
IMMUNOLOGY 317–324 (2005).
4 Ibrahim M. El-Sherbiny et al., Green synthesis of densely dispersed and
stable silver nanoparticles using myrrh extract and evaluation of their
antibacterial activity, 3 J. NANOSTRUCTURE IN CHEMISTRY 1–7 (2013)
(http://www.jnanochem.com/content/3/1/8).
5 Adil M Allahverdiyev et al., Antileishmanial effect of silver nanoparticles
and their enhanced antiparasitic activity under ultraviolet light, 6 INT. J.
NANOMEDICINE 2705–2714 (2011).
6 Assessment report on Commiphora molmol Engler, gummi-resina,
EUROPEAN MEDICINES AGENCY (2010).
7 Swarup Roy & Tapan Kumar Das, Plant Mediated Green Synthesis of
Silver Nanoparticles-A Review, 3 INT. J. PLANT BIOL. RES. 1044 (2015).
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stirring the myrrh gum extract with the aqueous solution
of the metal salt solution for about 15 to 20 minutes at a
temperature of about 50 °C to about 100 °C to produce the
silver nanoparticles, wherein the silver nanoparticles have a
mean diameter in the range of from about 5 nm to about 50 nm.

6. A method of treating epidermal lesions caused by
Leishmaniasis, the method consisting of the
mixing an extract of myrrh with an aqueous solution of
silver nitrate (AgNO3) for about 15 to 20 minutes at a
temperature of about 50 °C to about 100 °C to form silver
nanoparticles in aqueous myrrh suspension, the silver
nanoparticles having a mean size of about 5 nm to about 50 nm;
and
topically applying an effective amount of the silver
nanoparticles in aqueous myrrh suspension to a patient in need
thereof.
Appeal Br. 15–16.
DISCUSSION
The Examiner’s Prima Facie Case
The Examiner cited Atta as disclosing a process of preparing silver
nanoparticles by “preparing aqueous solution of silver nitrate and mixing
with myrrh extract at 90 degrees Celsius for an hour resulting in sphere
shaped nanoparticles with particles sizes ranging from 9.3 to 12.5 nm.”
Final Act. 3.
The Examiner found that Atta’s process differs from the processes
recited in Appellant’s independent claims 1 and 6 in that Atta “does not
expressly disclose treatment of epidermal lesions caused by leishmaniasis,
including Leishmania major infection and subcutaneous lesions . . . .” Final
Act. 4.
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The Examiner found that the combined teachings of Lamb, El-
Sherbiny, Allahverdiyev, European Medicines, and Roy would have
suggested topically applying Atta’s myrrh/silver nanoparticle composition to
a patient to treat an epidermal lesion caused by Leishmaniasis. Final Act. 4–
5.
The Examiner reasoned in particular that, based on the teachings of
the cited references, Leishmaniasis lesions “are cutaneous and
subcutaneous,” which are “open wounds or ulcer in the skin, and, in view of
the effectiveness of the silver nanoparticles against Leishmania one ordinary
skill in the art would expect that silver nanoparticles would be effective
when topically applied and that the myrrh would contribute to the healing of
the lesion.” Final Act. 5.
Therefore, the Examiner concluded, “the claimed invention, as a
whole, would have been prima facie obvious to one of ordinary skill in the
art before the effective filing date of the claimed invention because every
element of the invention has been collectively taught by the combined
teachings of the references.” Final Act. 5.
Analysis
[T]he examiner bears the initial burden . . . of presenting a
prima facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); see also In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (holding that requiring an applicant to
identify “reversible error” in an examiner’s rejection is consistent with long
standing Board practice).
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In the present case, we are not persuaded that Appellant has shown
reversible error in the Examiner’s prima facie case of obviousness, nor does
Appellant persuade us that the preponderance of the evidence fails to support
the Examiner’s ultimate conclusion of obviousness.
Claim 1
As required by Appellant’s claim 1, Atta discloses a method of
preparing silver nanoparticles by combining a myrrh extract with an aqueous
silver nitrate solution:
Myrrh coated silver nanoparticles were synthesized as the
same reported procedure used for preparation of Ag/PVP NPs
[silver/polyvinylpyrrolidone nanoparticles] but Myrrh 2 g was
[sic] replaced both PVP and glucose and 50 ml of ammonia
solution (25 Wt %) was added to the reaction mixture. The
reaction temperature was kept until the color changed from
yellow to brown.
Atta 8228; see also id. (describing preparation of Ag/PVP NPs by a
procedure in which “2 g of glucose and 1 g of PVP were dissolved in 40 g of
water and heated to 90 °C” after which “0.5 g of AgNO3 dissolved in 1 mL
of water was quickly added” and then “[t]he dispersion was kept at 90 °C for
1 h until the color changed to be brown and then cooled to room
temperature”); id. at 8231–32 (“[T]he average size of all prepared Ag-NPs
. . . ranged from 9 to 12 nm.”).
As Appellant contends, Atta does not expressly disclose that the
myrrh extract used to prepare its nanoparticles came from the Commiphora
molmol plant. See Atta 8227 (“Myrrh gum produced from a spiny deciduous
thorny tree or shrub which grows as thickets to the height of 15 feet in Saudi
Arabia desert regions. The soluble fraction of Myrrh was extracted from
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ethanol/water (1:1 volume %) and used as capping agent after recovery
using a vacuum evaporator.”).
As the Examiner found, however, the European Medicines article
discloses that the Commiphora molmol plant was a known source of myrrh.
See European Medicines 3.
Because the Commiphora molmol plant was a known source of myrrh,
we agree with the Examiner that a skilled artisan, seeking to prepare Atta’s
myrrh/silver nanoparticles, had good reason for, and a reasonable
expectation of success in, using the Commiphora molmol plant to prepare
the myrrh extract employed in Atta’s myrrh/silver nanoparticles. Appellant
does not persuade us, therefore, that the Examiner erred reversibly in
concluding that it would have been obvious to use the Commiphora molmol
plant to prepare the myrrh extract employed in Atta’s myrrh/silver
nanoparticles, as recited in Appellant’s claim 1.
We acknowledge, as Appellant argues (see Appeal Br. 10, 12; Reply
Br. 6), that Atta does not disclose that its myrrh/silver nanoparticle
composition is useful for treating epidermal lesions caused by Leishmania
major, but instead discloses using the nanoparticles to inhibit steel corrosion.
See Atta 8236 (“The electrochemical measurements indicated that stabilized
monodisperse silver Nanoparticles can be used as corrosion inhibitor for
steel in 1 M HCl.”).
As our reviewing court has explained, however, “where a patentee
defines a structurally complete invention in the claim body and uses the
preamble only to state a purpose or intended use for the invention, the
preamble is not a claim limitation.” Rowe v. Dror, 112 F.3d 473, 478 (Fed.
Cir. 1997); see also Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246
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F.3d 1368, 1375–76 (Fed. Cir. 2001) (holding that, as to process claims, a
preamble recitation that merely expresses the purpose of performing the
claimed steps is not a limitation on the process where the body of the claim
fully sets forth the steps required to practice the claimed process, and where
the preamble recitation does not affect how the claimed steps are to be
performed).
In the present case, Appellant’s claim 1 recites “[a] method of
preparing silver nanoparticles . . . consisting of” a sequence of steps recited
in the body of the claim that yields the nanoparticles. Appeal Br. 15. The
preamble recitation that the nanoparticles are “for treating epidermal lesions
caused by Leishmania major” (id.) is therefore merely an intended use of the
product that results from the claimed process, and thus is not a limitation of
claim 1’s process. Accordingly, the fact that Atta uses the nanoparticles
prepared by its process to inhibit steel corrosion does not persuade us that
Atta, when combined with the European Medicines article, fails to suggest
performing claim 1’s process.
Appellant argues that “Atta does not disclose silver nanoparticles as
claimed but, rather, discloses glucose and PVP-coated silver nanoparticles
(see page 8228, Section 2.2.1 Preparation of Ag/PVP NPs).” Appeal Br. 10.
We are not persuaded. As noted above, while Atta discloses
preparing PVP-coated silver nanoparticles or “Ag/PVP NPs,” Atta also
discloses that “Myrrh coated silver nanoparticles were synthesized [by] the
same reported procedure used for preparation of Ag/PVP NPs but Myrrh 2 g
was [sic] replaced both PVP and glucose.” Atta 8228 (emphasis added).
Appellant argues that the “claimed method uses Myrrh extract as the
reducing agent without more chemicals.” Appeal Br. 10. As seen above,
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however, Atta’s myrrh/silver nanoparticles do not contain PVP or glucose.
Other than PVP and glucose, Appellant does not explain specifically which
chemicals used in Atta are excluded from claim 1’s process, nor does
Appellant identify the specific claim language that might exclude chemicals
other than those recited in claim 1.
We note, although not argued specifically by Appellant, that the
preamble of claim 1 uses “consisting of” as the transitional phrase in relation
to the claimed method. Appeal Br. 15. We also note, although again not
argued specifically by Appellant, that Atta’s aqueous silver nitrate solution
contains ammonia. See Atta 8228.
Claim 1, however, uses the open term “including” in relation to the
aqueous silver nitrate solution. Appeal Br. 15. The term “including” does
not exclude additional ingredients from the claimed aqueous solution. See
SanDisk Corp. v. Memorex Products, Inc., 415 F.3d 1278, 1284 (Fed. Cir.
2005) (“As a patent law term of art, ‘includes’ means ‘comprising.’ . . .
Neither includes, nor comprising, forecloses additional elements that need
not satisfy the stated claim limitations.”) (Citations omitted). Appellant does
not persuade us, therefore, that the “claimed method uses Myrrh extract as
the reducing agent without more chemicals.” Appeal Br. 10.
Appellant argues that Lamb, El-Sherbiny, Allahverdiyev, European
Medicines, and Roy fail to remedy the deficiencies of Atta asserted by
Appellant in relation to Appellant’s claim 1. We are not persuaded. In
relation to the process of Appellant’s claim 1, the European Medicines
article merely provides evidence that the Commiphora molmol plant was a
known source of myrrh, and that it therefore would have been obvious to use
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the Commiphora molmol plant to prepare the myrrh extract employed in
Atta’s myrrh/silver nanoparticles, as recited in Appellant’s claim 1.
For the reasons discussed below as to claim 6, Appellant does not
persuade us that the Examiner erred reversibly in finding that Lamb, El-
Sherbiny, Allahverdiyev, European Medicines, and Roy would have
suggested applying Atta’s myrrh/silver nanoparticles to epidermal lesions
caused by Leishmaniasis. As discussed above, however, the recitation in
claim 1’s preamble, that the nanoparticles are for treating epidermal lesions
caused by Leishmania major, is merely an intended use of the product that
results from the claimed process, and thus is not a limitation of claim 1’s
process. Accordingly, even if it were true (which it is not) that Lamb, El-
Sherbiny, Allahverdiyev, European Medicines, and Roy would not have
suggested applying Atta’s myrrh/silver nanoparticles to epidermal lesions
caused by Leishmaniasis, that would not demonstrate the nonobviousness of
claim 1’s process.
In sum, for the reasons discussed above, Appellant does not persuade
us that the Examiner erred reversibly in determining that the process recited
in Appellant’s claim 1 would have been prima facie obvious. For the
reasons discussed below, Appellant also does not persuade us that the
Examiner erred in determining that the evidence of unexpected results
advanced by Appellant is insufficient to outweigh the prior art evidence of
prima facie obviousness.
Appellant relies on the AlOlayan Declaration8 as evidence that the
nanoparticles produced by claim 1’s process have worked unexpectedly well

8 Declaration under 37 C.F.R. § 1.132 of Dr. Ebtesam Mohammed AlOlayan
(signed June 24, 2016).
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in treating epidermal lesions caused by Leishmania major. Appeal Br. 11,
13; Reply Br. 8. Table 19 of the AlOlayan Declaration is reproduced below:

“As is shown, lesions treated with silver nanoparticles made according
to the inventive method had completely healed within 21 days. Lesions
treated with commercial silver nanoparticles, however, only demonstrated
partial healing after 21 days.” AlOlayan Declaration ¶ 4.10
As the Examiner argues, however (Ans. 11; Final Act. 9), it is well
settled that “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 the present case, Appellant does not explain why the commercial
nanoparticles used in the comparison shown in Table 1 above represent the

9 “Table 1 . . . is similar to Table 2 provided in Example 3 of the present
application, except that the results of the treatment with commercial silver
nanoparticles are also provided.” AlOlayan Declaration ¶ 4.
10 Table 1 also provides results for treatments using “Pentostam,” which is
described in Appellant’s Specification as “the commercially used drug
(Pentostam) used to treat Leishmania.” Spec. ¶ 23.
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closest prior art, nor does Appellant respond to the Examiner’s argument in
that regard. See Appeal Br. generally; Reply Br. generally. Nor does
Appellant provide any details about the ingredients in the commercial
nanoparticles, or their method of preparation.
We note, moreover, that El-Sherbiny discloses that myrrh/silver
nanoparticles similar to those made by Atta have anti-bacterial properties.
See El-Sherbiny 1 (Silver nanoparticles “synthesized by exposing a mixture
of AgNO3 and myrrh extract to UV irradiation . . . demonstrated a relatively
high antibacterial activity against Bacillus thuringiensis and Pseudomonas
aeruginosa bacteria as compared to that of myrrh extract. The antibacterial
activity increased with increasing the Ag NP concentration.”).
Allahverdiyev, moreover, discloses that silver nanoparticles are
active against a species that causes Leishmaniasis. See Allahverdiyev 2705
(“[F]or the first time the antileishmanial effects of Ag-NPs on L. tropica
parasites were demonstrated along with the enhanced antimicrobial activity
of Ag-NPs under UV light.”).
Given the anti-microbial efficacy of silver nanoparticles disclosed in
the prior art cited by the Examiner, and given the absence on the current
record of a specific explanation as to the particular ingredients and method
of preparation of the commercial nanoparticles used as the basis for
comparison in the AlOlayan Declaration, we agree with the Examiner that
Appellant has not established that the particles prepared by the process of
Appellant’s claim 1 have been compared to the closest prior art. We
therefore also agree with the Examiner that the evidence of unexpected
results advanced by Appellant does not outweigh the prior art evidence of
prima facie obviousness.
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In sum, for the reasons discussed, Appellant does not persuade us that
the Examiner failed to establish that the process recited in Appellant’s claim
1 would have been prima facie obvious. For the reasons discussed,
Appellant also does not persuade us that the Examiner erred in determining
Appellant’s evidence of unexpected results is insufficient to outweigh the
prior art evidence of obviousness. Accordingly, we affirm the Examiner’s
rejection of claim 1 for obviousness over the cited references. Claims 2 and
5 fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
Claim 6
Appellant’s claim 6 recites “[a] method of treating epidermal lesions
caused by Leishmaniasis.” Appeal Br. 15.
Claim 6’s method “consist[s] of the mixing an extract of myrrh with
an aqueous solution of silver nitrate” in a manner substantially the same as
recited in claim 1, discussed above, and then “topically applying an effective
amount of the silver nanoparticles in aqueous myrrh suspension to a patient
in need thereof.” Appeal Br. 15–16.
Notably, claim 6 does not require the myrrh extract to be from the
Commiphora molmol plant, unlike claim 1. Nor does claim 6 require the
treated lesions to be caused by a particular species of Leishmania.
As required by Appellant’s claim 6, Atta discloses a method of
preparing silver nanoparticles by combining a myrrh extract with an aqueous
silver nitrate solution according to time and temperature parameters which
Appellant does not dispute are consistent with claim 6. Atta 8228. As
discussed above, Appellant does not persuade us that Atta’s myrrh/silver
nanoparticles contain PVP or glucose. See id.
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As to Appellant’s argument that the “claimed method uses Myrrh
extract as the reducing agent without more chemicals” (Appeal Br. 10),
Appellant does not explain specifically which chemicals used in Atta, other
than PVP and glucose, are excluded from claim 6’s process. Nor does
Appellant identify the specific claim language that might exclude chemicals
other than those recited in claim 6.
We note, although not argued specifically by Appellant, that the
preamble of claim 6 uses “consisting of” as the transitional phrase in relation
to the claimed method. Appeal Br. 15. We also note, although again not
argued by specifically by Appellant, that Atta’s aqueous silver nitrate
solution contains ammonia. See Atta 8228.
However, the presence of ammonia does not change the fact that
Atta’s silver nitrate solution is “an aqueous solution of silver nitrate,” which
is precisely the solution required by claim 6. Appeal Br. 16. Moreover,
because the “consisting of” language (which Appellant does not specifically
identify or argue) in claim 6 is used in the preamble in connection with the
claimed steps, rather than the ingredients used in the claimed process,
Appellant does not persuade us that the “claimed method uses Myrrh extract
as the reducing agent without more chemicals.” Appeal Br. 10.
We acknowledge, as Appellant argues, that Atta discloses using its
myrrh/silver nanoparticles to inhibit steel corrosion, rather than for treating
epidermal lesions caused by Leishmaniasis, as recited in Appellant’s claim
6. See Appeal Br. 10, 12; Reply Br. 6. Atta, however, is not the sole
reference relied upon by the Examiner. Thus, the fact that Atta by itself
does not suggest performing claim 6’s process does not demonstrate that the
process is nonobvious. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
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Cir. 1986) (“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in isolation,
but for what it fairly teaches in combination with the prior art as a whole”).
In the present case, in addition to the teachings in Atta, El-Sherbiny
discloses that myrrh/silver nanoparticles similar to those made by Atta have
anti-bacterial properties, as noted above. See El-Sherbiny 1. As also noted
above, Allahverdiyev discloses that silver nanoparticles are active against a
species that causes Leishmaniasis. See Allahverdiyev 2705.
As the Examiner found, moreover, the European Medicines article
discloses that a “current use of myrrh tincture is the topical application to
minor wounds, abrasions, furuncles and skin inflammations.” European
Medicines 5 (citations omitted).
Given the teaching in El-Sherbiny that myrrh/silver nanoparticles
similar to Atta’s have anti-bacterial properties, as well as the teaching in
Allahverdiyev that silver nanoparticles are active against a species that
causes Leishmaniasis, and also the teaching in the European Medicines
article that myrrh is useful for treating minor skin lesions, we agree with the
Examiner that a skilled artisan had a good reason for, and a reasonable
expectation of success in, using Atta’s myrrh/silver nanoparticles to treat
epidermal lesions caused by Leishmaniasis, as recited in Appellant’s claim
6. We therefore also agree with the Examiner that the process recited in
Appellant’s claim 6 would have been prima facie obvious.
The fact that El-Sherbiny prepares its myrrh/silver nanoparticles by a
method different than Atta (see Appeal Br. 10) does not persuade us that,
when the relevant teachings in the cited references are properly viewed in
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combination, a skilled artisan lacked motivation or a reasonable expectation
of success in using Atta’s myrrh/silver nanoparticles to treat epidermal
lesions caused by Leishmaniasis, as recited in claim 6. See In re Merck &
Co., 800 F.2d at 1097 (“Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.”).
We acknowledge the statements in the European Medicines article,
identified by Appellant (Appeal Br. 11), that as to myrrh “[n]o studies of
clinical efficacy related to the traditional indications are available”
(European Medicines 13), and that “[s]ufficient data have not been retrieved
from the literature to support any ‘well-established medicinal use’” (id. at
15).
Ultimately, however, the European Medicines article states that, “[o]n
the basis of long-standing use and experience, the efficacy of myrrh must be
seen as plausible in the traditional indications a) minor ulcers and
inflammation in the mouth (stomatitis and gingivitis) and b) minor wounds
and furuncles.” European Medicines 13–14 (emphasis added); see also id.
at 15 (“Overall, a monograph on myrrh (tincture) is recommended with the
following therapeutic indication[] . . . b) Traditional herbal medicinal
product for treatment of minor wounds and small boils (furuncles).”).
Moreover, contrary to Appellant’s contention that “the reference lacks
any teaching as to its method of preparation” (Appeal Br. 11), the European
Medicines article explains that it is the “tincture” which is known to be
useful for treating skin lesions, and the tincture is an ethanol extract, like that
employed by Atta. See European Medicines 5; see also Atta 8227.
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Given the ultimate teaching in the European Medicines article
supporting the use of myrrh extract for treating minor skin lesions, Appellant
does not persuade us that a skilled artisan would have been dissuaded from
using Atta’s myrrh/silver nanoparticles to treat epidermal lesions caused by
Leishmaniasis, as recited in Appellant’s claim 6, particularly given the
teaching in El-Sherbiny that that myrrh/silver nanoparticles similar to Atta’s
have anti-bacterial properties, as well as the teaching in Allahverdiyev that
silver nanoparticles are active against a species that causes Leishmaniasis.
In sum, for the reasons discussed above, Appellant does not persuade
us that the Examiner erred reversibly in determining that the process recited
in Appellant’s claim 6 would have been prima facie obvious. For reasons
similar to those discussed above in relation to claim 1, Appellant also does
not persuade us that the Examiner erred in determining that the evidence of
unexpected results is insufficient to outweigh the prior art evidence of prima
facie obviousness as to the process recited in claim 6. In particular, as
discussed above, Appellant does not persuade us that it has shown
sufficiently that the evidence of unexpected results includes a comparison to
the closest prior art.
Accordingly, because Appellant does not persuade us that the
Examiner’s conclusion of obviousness as to Appellant’s claim 6 is not
supported by a preponderance of the evidence, we affirm the Examiner’s
rejection of claim 6 over the cited references. Claims 7, 8, 10, and 11 fall
with claim 6. See 37 C.F.R. § 41.37(c)(1)(iv).
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 5–8,
10, 11
103(a) Atta, Lamb,
El-Sherbiny,
Allahverdiyev,
European Medicines,
Roy
1, 2, 5–8,
10, 11

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED