And Appeal No 94-1146
Application 07/746,050
isolated from soil collected in Uruguay (Spec., p. 3, last
paragraph).
2. The rejections
A. Claims 1-12 stand rejected under 35 U.S.C. § 103 as
being unpatentable in view of antibiotic AB-85 disclosed in
Japanese Patent Publication 59-18035, published April 25,
1984.
B. Claims 1-12 stand provisionally rejected for
obviousness-type double patenting of Claims 1-9 of commonly
assigned copending Application 07/747,456.
C. Claims 1-12 stand provisionally rejected for
obviousness-type double patenting of Claims 1-9 and 11 of
commonly assigned Application 07/746,059.
3. Discussion
A. Obviousness under Section 103
The examiner has the initial burden of making out a case
for obviousness under 35 U.S.C. § 103. Here, the examiner’s
case for obviousness is supported by the following arguments
(Examiner’s Answer, pp. 3-4):
The Japanese patent discloses an antibiotic
having molecular formula C H N O . Appellants on
25282 5
page 13 of the specification state that the macrolactam
monosaccharide of formal [sic, formula] 2 and having
the molecular formula as given, is disclosed by the
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