Appeal No. 93-3114
Application 07/825,465
teaching to use B-propiolactone-inactivated Fusobacterium
necrophorum bacterin over the use of formaldehyde, heat, and
antibiotics deserves and has been granted considerable weight,
i.e., the prior art certainly prefers to use formaldehyde to
inactivate gram-negative bacteria, we find the evidence as a
whole insufficient to support patentability for the full scope
of the subject matter claimed.
Having carefully considered the decision rendered and
supporting opinion in In re Baird, 16 F.3d 951, 8 USPQ2d 1550
(Fed. Cir. 1994) in light of the evidence presented in that
case, it is our view that the evidence in this case warrants a
different result. Here, unlike the case in Baird, the prior
art expressly states that B-propiolactone may be used to
inactivate gram-negative bacteria and that Fusobacterium
necrophorum is a gram-negative bacterium. Thus, at the time
this application was filed, the claimed process would have
been prima facie obvious to persons having ordinary skill in
the art for the specific utility indicated in applicant’s
specification. Here, the prior art does not indicate why
formaldehyde was preferred. We will not hazard a guess.
Moreover, here applicant has not compared the activity of B-
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