Appeal No. 1997-2080
Application No. 08/159,939
determination of obviousness was based on less than the entire claimed subject matter,
the examiner’s conclusion of obviousness is legally unsound and cannot stand.
On this record, we reverse the examiner’s rejection of claims 21, 22, 24, 29-32 and
35 under 35 U.S.C. § 103.
Rejection II
Claims 7, 23, 33, and 34 require adjusting the pH of the fermentation broth to about
7.0 after the pH of the fermentation broth has stabilized, and stand rejected under 35
U.S.C. § 103 as being unpatentable over Shumin Na, Kelly and Kato. The examiner relies
on Kato to establish that “lowering the initial pH of the culture medium greatly increases the
molecular weight of pullulans obtained.” Examiner’s Answer, pages 3 and 4. From this,
the examiner concludes that “in order to prepare a pullulan of high molecular weight, a
person having ordinary skill in the art . . . would have been motivated to start fermentation
at a lower pH and adjust the pH to neutral after the initial fermentation has taken place.” Id.,
page 4.
We disagree. We find no suggestion in Kato to adjust the pH to neutral after the
initial fermentation has taken place and the pH has stabilized. Moreover, Kato does
nothing to overcome the underlying deficiency in the examiner’s proposed combination of
the teachings of Shumin Na and Kelly.
Accordingly, we reverse the examiner’s rejection of claims 7, 23, 33 and 34 under
35 U.S.C. § 103 as well.
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