Appeal No. 95-4691
Application 08/021,652
The prior art shows that of the three components Appellants include in their tissue
plasminogen activator composition, both the amine compound and the acid are
conventionally added to such composition for the purpose of improving the solubility of the
tissue plasminogen activator. Of the third component, the anionic polymer, one of ordinary
skill in the art would be motivated by the prior art to include an anionic polymer for the
purpose of increasing the activity of the tissue plasminogen activator. Therefore, it would
have been obvious to one of ordinary skill in the art at the time the invention was made to
formulate a tissue plasminogen activator composition with known excipients well
recognized in the art for improving the solubility and activity of the tissue plasminogen
activator.
We cannot agree with the examiner’s conclusion for obviousness. First, the Dussourdd’Hinterland
reference is not directed to t-PA. Second, the examiner has not explained why a person having ordinary
skill in the art would have been motivated to add the polysulfate ester of EP 198321 to the compositions
of either Duffy or Isaacs based on increased activity disclosed in EP 198321. The suggestion to combine
t-PA, an amine and an anionic polymer must flow from the prior art, not from appellants’ disclosure. In
essence, we consider the examiner*s obviousness conclusion to be based upon impermissible hindsight
derived from the appellants* own disclosure rather than a teaching, suggestion or incentive derived from
the applied prior art. To the extent that the examiner considers that it would have been obvious to combine
the compositions taught by each of the references in accordance with In re Kerkhoven, 626 F.2d 846,
850, 205 USPQ 1069, 1072 (CCPA 1980), we cannot agree. On this record, the examiner has not taught
by the prior art to be useful for the same purpose, in order to form a third composition which is to be used
for the same purpose, in order to form a third composition which is to be used for the same purpose.
Accordingly, for the reasons given above, the rejection of claims 1-17 under 35 U.S.C. § 103
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