Appeal 2007-0539
Application 10/264,026
Appellants to establish that the prior art pseudopterosin compositions do not
contain pseudopterosin compounds obtainable from Symbiodinium spp., or
that the prior art compositions contain animal impurities.
Appellants point to Figures 1 and 2 of the Specification, thin layer
chromatograms which show “the separations for the algal fraction
(Symbiodinium spp. symbiont) and the coral (animal) fraction[,]” as
evidence that the two fractions “are clearly different” (Br. 2-3). We do not
disagree, but Appellants have not explained how the fact that crude coral and
algal extracts are different has any bearing on whether the pseudopterosin
compositions of the cited prior art contain animal impurities. Therefore, this
evidence does not persuade us that the claimed compositions are not
anticipated by the prior art compositions.
Appellants additionally rely on two “HPLC chromatographs of an
extract from Symbiodinium spp. (algae) (Figure A) and an extract of
Pseudopterogorgia elisabethae (coral) (Figure B)”9 (Br. 6), as evidence that
“the algae composition/extract contains different compounds as well as
having different concentrations of the pseudopterosin compounds when
compared to the coral composition/extract as evidenced by the difference in
the peaks” (id. at 7). Appellants argue that “the algae extract clearly has
many other compounds as indicated by the numerous peaks not observed
from the coral extract. Since the algae extract is from a non-animal origin,
these additional compounds in the algae extract are not animal impurities,
9 These two chromatographs were originally submitted with Appellants’
Amendment-After-Final on June 17, 2004, and are reproduced on pages 6
and 7 of the Brief.
9
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