Appeal No. 2000-0827
Application 08/466,104
Several variations on this general approach have
been described. [Widder et al.] EPO Application No.
0324938 [copy enclosed5] describes a viscous solution
of a biocompatible material, such as a human protein,
in which microbubbles are contained. By submitting a
viscous protein solution to sonication, microbubbles
are formed in the solution. Partial denaturation of
the protein by chemical treatment or heat provides
additional stability to microbubbles in the solution by
decreasing the surface tension between bubble and
solution.
Id. at 16, l. 31 to p. 17, l. 26 (emphasis added). Inasmuch as
the rejection is based on the number of disclosed "existing
techniques" rather than on the interpretation of the EPO
paragraph, we need not decide how it should be construed.
Nevertheless, we offer the following comments. Appellant
characterizes the EPO paragraph as describing an "aqueous
solution[] of human protein, containing microbubbles" (Brief at
13, ll. 7-9) without also explaining whether the microbubbles are
free gas microbubbles, encapsulated microbubbles, or described as
being of either type. However, Dr. Hilpert's testimony (Second
Hilpert Declaration at ¶ 7(2)) that the description of the
contrast agents at pages 16 and 17 of Appellant's specification
(including the EPO paragraph) "is consistent with the
descriptions in the Hilpert Chapter" suggests Appellant believes
the microbubbles described in the EPO paragraph are encapsulated
in human protein, as is the case with Albunex, the only human
5 The copy in Appellant's application file is incomplete.
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