Appeal No. 95-0777
Application 07/756,411
The subject matter on appeal is directed to the antibiotic
LL-E19020 Gamma (hereafter “Gamma”), its composition and method
of use for treating bacterial infections. The subject matter on
appeal is adequately illustrated by appealed claim 1, which is
reproduced and attached to this decision as an Appendix.
The references relied upon by the examiner are:
Naito et al. (Naito) 3,872,079 Mar. 18, 1975
Carter et al. (Carter) 4,705,688 Nov. 10, 1987
Carter et al. (Carter II), “LL-E19020" and $, Novel Growth
Promoting Agents: Isolation, Characterization and Structures”, 41
The Journal of Antibiotics, no. 10, 1511-1514 (October 1988).
Claims 1, 4 and 5 stand rejected under 35 U.S.C. § 103 as
unpatentable over Carter II in view of Naito. Claim 1 stands
rejected under 35 U.S.C. § 102(b) as anticipated by Carter . We 2
reverse both stated rejections.
OPINION
A. The Rejection under 35 U.S.C. § 103
The claimed antibiotic compound Gamma is concededly produced
by fermentation of the same strain of microorganism as Carter II
uses to produce LL-E19020 alpha and beta (hereafter “alpha” and
“beta”, see the brief, page 3). The claimed compound Gamma
2This rejection was a new ground of rejection made for the
first time on page 5 of the examiner’s answer.
2
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