Appeal No. 1997-3511
Application No. 08/233,663
underlying evidence provided by both the examiner and appellants, convince us that the
present record does not provide an adequate briefing of the issues raised by this appeal
to permit a meaningful review for the reasons which follow.
In rejecting the claims pending in this application the examiner’s principal reference
is an abstract, apparently printed from a commercial data base, of a German patent. It is
not readily apparent to us why no effort was made to obtain the underlying document and
obtain a translation thereof. Appellants, for their part, have supplied a copy of the PCT
3
document which is referenced as PCT/EP90/02238 (hereinafter WO 91/10439) to
Schwinn (German language) and U.S. Patent 5,328,694 to Schwinn which appellants urge
is the English equivalent, apparently to the abstracted German Patent 4,001,451. (Brief
page 4). We would note that U.S. Patent 5,328,694 claims benefit under 35 U.S.C. § 119
to German Patent 4,001,451 and would be considered likely to correspond to some
degree with that document. However, even a cursory reading of these two documents
indicates that they differ in scope of disclosure in that the U. S. Patent does not describe
any compositions relating to Factor IX while the German patent does describe
compositions containing Factor IX.
reviewing this appeal.
3 Appellants have apparently, incorrectly identified this document, since the document supplied
with the Brief is WO 91/10439 which reasonably appears to claim benefit of the earlier filing date of
PCT/EP90/02238.
4
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