Appeal No. 94-2901
Application No. 07/837,666
have been expected to be degraded like carbohydrate
by the high temperature of steam sterilization to
form acid . . . Glycerol not being degraded to form
an acid would have been expected to result in a pH
stable medium. [Examiner's Answer, page 15].
In our judgment, however, the examiner's argument is not based
on adequate evidence or sound scientific reasoning. Rather,
we believe that the argument is derived from information
provided by applicant in the instant specification, i.e., the
examiner's argument is based on the impermissible use of
hindsight. The examiner's position to the contrary,
notwithstanding, we hold that the objective evidence in
applicant's specification, pages 5 through 8, shows that the
claimed culture medium provides a significant improvement in
the art which would not have been expected at the time the
invention was made by a person having ordinary skill in the
art.
The rejection of claim 19 under 35 U.S.C. § 103 is
reversed.
SECTION 112
Claims 18 through 22 stand rejected under 35 U.S.C.
§ 112, second paragraph. According to the examiner, the
claims do not particularly point out and distinctly claim the
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