Appeal No. 93-4005
Application 07/795,158
cell lyses may not begin until after 45 minutes. Thus,
although Epstein realized, and suggested, that enhanced yield
would be obtained when riboflavin-producing microorganisms are
lysed, there is no evidence that Epstein ever worked with
cells in a lysed condition.
When we turn to the Babayan reference, which describes
autolysis of various microorganisms, we do not find any
discouraging statements with respect to time. In view of the
different culture variables described by Babayan, those
skilled in the art would have expected that gentle heating of
an oxygen-deprived culture of filamentous fungi would have
resulted in the complete enzymatic breakdown of the cell wall
and proteins over time.
Hence, the time statements by Epstein reduce to a mere
conclusion. Our appellate reviewing court recently made the
observation that nothing in applicable jurisprudence requires
the fact finder to credit the unsupported assertions of an
expert witness. Rohm and Haas Co. v. Brotech Corp., 127 F.3d
1089, 1092, 44 USPQ2d 1459, 1462 (Fed. Cir. 1997).
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