I've received a first rejection that cites 2 patents, but only one is a problem as it claims an entire drugstore of possible combinations for treating a likewise enormous number of diseases, but without specifically citing my combination. My examiner issued an obviousness rejection based on that reference. But when I looked at the file wrapper, all the claims were initially rejected with the following language –
“...the skilled artisan would be burdened with undue experimentation in determining what substrates of the instant invention would be effective at treating/preventing ANY disease or disorder.”
The emphasis on “any” was the examiner’s. Thus it seems to me that if the examiner of the reference rejected it on that basis, my examiner couldn’t then claim it would be obvious, right? Or at a minimum it would give me grounds to appeal.
So, bottom line, is it kosher to quote this, or might it somehow do me more harm than good?