Appeal No. 93-4005
Application 07/795,158
based particularly on the teachings of Babayan, would have
been able through routine experimentation to determine
appropriate ranges for those factors. The prior art, as a
whole, demonstrates that one having ordinary skill in the art
would have the skill and motivation to determine the optimum
conditions to achieve autolysis. Compare In re Woodruff, 919
F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Accordingly, we
conclude that the subject matter of the claims on appeal would
have been prima facie obvious.
We have not overlooked the claimed limitation of 6-28
hours and the apparent discouragement described by German
Patent 29 20 592 and Epstein of not exceeding "about 45
minutes." Epstein discourages heating for more than 45
minutes, because the viscosity of his media is said to
increase. Because Epstein is collecting riboflavin from a
supernatant, an increase in viscosity would decrease yield.
As we pointed out in Finding 16, unlike applicant, Epstein has
not provided any microscopic data to confirm the statement
that "heating serves to lyse the cells." Given the time and
temperature taught by Epstein, and his observation as to when
the media becomes viscous, it is reasonable to conclude that
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