Appeal 2007-2371
Application 10/426,654
polymer combination in which Carbopol was added to preformed lecithin
vesicles prepared by homogenization (id. at 10-11). Appellant argues that
comparing Figures 3 and 4 (adjuvant of claimed invention) to Figure 5
(Anselem’s adjuvant) shows that, in the claimed adjuvant, “[t]he
phospholipids appear to be fused to the polymer and, as clearly shown,
extend from one polymer fragment to another, producing a net- or matrix-
like appearance” (id. at 10), whereas in Anselem’s adjuvant “there appears
to be some kind of repulsion between the lecithin vesicles and the acrylic
polymer” (id. at 11).
We do not find this argument persuasive. First, Appellant states that
the figures attached to the Brief “were presented at an interview during
prosecution” (Br. 9) but the figures were not presented as part of a
declaration under 37 C.F.R. § 1.132. That rule requires that “any evidence
submitted to traverse [a] rejection or objection on a basis not otherwise
provided for must be by way of an oath or declaration under this section.”
Thus, the electron micrographs and accompanying discussion are not
entitled to any presumption of accuracy and truthfulness, like a signed oath
or declaration; in other words, Appellant’s assertions regarding the electron
micrographs are nothing more than attorney argument.
Moreover, Appellant’s argument is again based on the premise that
claim 1’s recitation “combined together to form a matrix structure” requires
the lecithin and polymer to be hydrated together and then homogenized. As
is evident from the discussion above, we do not agree with that premise
because the Specification simply does not state that forming the matrix
structure requires performing any particular series of steps.
10
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: September 9, 2013