Appeal No. 95-4493
Application 07/756,646
OPINION
A. The Rejection under 35 U.S.C. § 103
The claimed antibiotic compound LL-E19020 alpha (hereafter
1
“alpha-1") is the C-21 epimer of the known antibiotic LL-E19020
alpha (hereafter “alpha”). Alpha-1 is prepared by the process
set forth on pages 10-13 of the specification.
Carter II describes the discovery of antibiotic alpha and
its preparation on page 1511.
From the properties recited for alpha in the Carter II
article and those properties of alpha-1 recited in appealed claim
1, it is apparent that the examiner and appellants agree that
alpha and alpha-1 are different compounds but have the same
structural formula. As stated by the examiner, the “sole
difference” between the prior art and the claimed compound “lies
in the configuration of the trisaccharide moiety at the C-21
position” (answer, page 4).
The examiner concludes that the claimed compound “is
rendered obvious” because the prior art compound is “structurally
similar” and both “possess similar antibacterial properties”
(answer, page 4). The examiner states that “the courts have
consistently held that if the claimed invention is structurally
3
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