Appeal No. 95-4493
Application 07/756,646
nutrient mediums employed are different, appellants combine two
fermentations while Carter II apparently only uses one
fermentation, and appellants recognize that fraction 7 contains
impure alpha-1 and purify it using a particular process to
isolate certain fractions (see the specification, page 12) while
Carter II does not isolate any fraction or use any further
purification procedures.
Furthermore, the examiner has not cited any evidence to
support the allegation that resolution of epimers is within the
ordinary skill of the art.
For the foregoing reasons, we hold that the disclosure of
Carter II does not place alpha-1 in the possession of the public
at the time appellants’ invention was made. Accordingly, the
rejection of claims 1, 4 and 5 under 35 U.S.C. § 103 as
unpatentable over Carter II is reversed.
B. The Rejection under 35 U.S.C. § 102(b)
The examiner has rejected appealed claim 1, directed to the
alpha-1 compound, as being anticipated by Carter since “the
instant compound is obtained from the same strain, by the same
process and as such is inherently present in the prior art
concentrate” (answer, paragraph bridging pages 5-6).
6
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