Appeal No. 93-3114
Application 07/825,465
Fusobacterium necrophorum cells are gram-negative bacterial
cells (Spec., p. 1, lines 8-14; Maas, Chapter I, Introduction,
p. 2, first paragraph).
Adams teaches that Fusobacterium necrophorum is
responsible for foot rot and liver abscesses and other lesions
in ruminant animals (Adams, col. 1, lines 34-51). Adams
utilized mice as models for determining the activity of
compounds against Fusobacterium necrophorum infection in
ruminant animals (Adams, col. 8, Example 2).
We conclude that persons having ordinary skill in the
art in view of the combined prior art teachings reasonably
would have been led to expect success in treating cattle with
B-propiolactone-inactivated Fusobacterium necrophorum bacterin
to prevent or control foot rot or liver necrosis. We agree
with the examiner’s view that a reasonable expectation of
success is required and not absolute predictability to sustain
a rejection for unpatentability under 35 U.S.C. § 103.
Compare In re O’Farrell, 853 F.2d 894, 903, 7 USPQ2d 1673,
1681 (Fed. Cir. 1988).
While appellant’s view that persons having ordinary skill
in the art would not have been led by the combined prior art
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