Appeal No. 2003-0528 Page 9
Application No. 09/314,841
reference teachings and a reasonable expectation of success. In re Vaeck, 947
F.2d 488, 493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991).
As discussed above, the tissue factor formulations of Brucato and Butler
are different. In addition, while Butler carefully explains the effect of each
ingredient in their formulation having a shelf life of at least 16 months, Brucato
makes no mention of a particular shelf life for their formulation. Accordingly, it is
unclear if changes to the Butler formulation will result in a change in the shelf life
of the formulation. Similarly, while Schwinn discloses that beta alanine and
GABA can increase the heat stability of certain proteins it remains unclear what
effect beta alanine and GABA will have on the shelf life of the formulation set
forth in either of Brucato or Butler. While a person of ordinary skill in the art may
possess the requisite knowledge and ability to modify the protocol taught by
Brucato or Butler, the modification is not obvious unless the prior art suggested
the desirability of the modification. In re Gordon, 733 F.2d 900, 902, 211 USPQ
1125, 1127 (Fed. Cir. 1984). Here we see no such reason to modify the
references as applied.
Accordingly, for the reasons discussed above, we reverse the rejection of
claims 1, 2, 5, 7-11, 16-19, 21, 39, 43-45, 48-51, 53 and 54 under 35 U.S.C.
§ 103 as being unpatentable over Brucato in view of Butler and Schwinn.
Brown in view of Brucato, Butler and Schwinn:
Brucato, Butler and Schwinn are relied upon as set forth above. The
examiner relies (Answer, page 7) upon Brown to teach “a method of preparing a
prothrombin reagent wherein lipids mixed with an antioxidant (BHT) are
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