Appeal No. 2001-2413
Application No. 09/167,894
We shall not sustain, however, the standing 35 U.S.C.
§ 102(e) rejection of claim 7 as being anticipated by Sadri.
In contrast to claim 1, claim 7 recites as a positive
element of the claimed perfusion system a “perfusate solution
containing gene therapy pharmaceuticals . . . maintained at a
temperature of about 37°C.” Sadri does not disclose a perfusion
system including such a solution. As the solution is a required
element of the claimed subject matter, the examiner’s
determination (see page 3 in the answer) that the Sadri
apparatus, by virtue of its heat exchanger, is inherently capable
of maintaining a perfusate solution at a temperature of about
37°C is of no moment.
We also shall not sustain the standing 35 U.S.C. § 103(a)
rejection of claim 7 as being obvious over Sadri.
Allowing that Sadri may not teach a “perfusate solution
containing gene therapy pharmaceuticals . . . maintained at a
temperature of about 37°C,” the examiner concludes (see pages 4
through 6 in the answer) that the use of same in the Sadri
apparatus would have been an obvious substitution of one
therapeutic solution for another. As indicated above, Sadri does
not in fact teach the solution in question, and notwithstanding
the discussion therein of various other perfusates, it does not
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