Appeal No. 1997-2512
Application No. 08/118,905
not result in the subject matter of independent claim 12. For these reasons, we hold that
the subject matter of dependent claims 14 and 15 would not have been prima facie
obvious within the meaning of 35 U.S.C.
§ 103 over the combined teachings of Frenkel and Whittaker.
We also agree with the appellants that Cassou likewise does not remedy the
deficiencies of Frenkel. Cassou discloses:
“The invention relates to a tube, known as a straw, for cryogenically
preserving biological samples, in particular viral cultures, formed by a length of
tubular envelope made of biologically neutral, substantially transparent polymer
material, provided with a seal at each of its two ends and including, in the vicinity of
a first end, a sliding stopper comprising an aqueous gel between two pads made of
porous elastic material.”
See column 1, lines 7-14. The appellants have acknowledged that Cassou “teaches how
to make a tube of the type disclosed in the application.” Page 3, Appeal Brief.
Further, at column 6, lines 63-68, Cassou teaches as follows:
“It will be appreciated, of course, that, in order to recover the biological
sample for use, the ends 11 and 12 are sectioned flush with the underformed zones
that are beyond the seals, and that the sample is expelled by pushing the sliding
stopper mechanically or pneumatically.”
However, there is no disclosure or teaching in Cassou regarding the administration
of a biological or pharmaceutical material as in the appellants’ claimed invention or in
Frenkel. Rather, Cassou is concerned with the cryogenic preservation of biological
samples, notably viral cultures. See, e.g., column 4, lines 31-35 and the abstract.
Cryogenic preservation is different from, and would not have suggested the administration
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