Appeal No. 95-0155
Application No. 07/890,335
DISCUSSION
Initially, we agree with the examiner's finding that the
claimed pharmaceutical composition and method are not
described by European Patent Application 0 041 766 within the
meaning of 35 U.S.C. � 102.
We have carefully reviewed European Patent Application
0 041 766 in its entirety, including the claims therein. At
best, this reference suggests that pro-tPA has "sufficient
binding capacity to fibrin" and behaves "in the same way" as
tPA when subjected to immunodiffusion analysis and quenching
experiments (European Patent Application 0 041 766, Example 4,
last paragraph). This reference teaches the use of tPA, not
pro-tPA, as a pharmaceutical. See claims 18 and 19 of
European Patent Application 0 041 766, drawn to a
pharmaceutical composition and a method of preparing a
pharmaceutical composition, which depend from claims 1 through
3 but exclude the subject matter of claim 4 drawn to pro-tPA.
Contrary to what a person having ordinary skill would
have expected at the time the invention was made, per the
teachings of European Patent Application 0 041 766,
applicant's specification describes the superiority of pro-tPA
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