Appeal No. 95-0083
Application 07/711,556
of human serum albumin as the expressed polypeptide would have been obvious in
view of Hitzeman, disclosing yeast organisms which are caused to express, process,
and secrete protein that is normally heterologous to yeast, e.g., human serum albumin.
Appellants argue that claims 1 and 6 through 12 of the '596 patent are drawn to
a transformed Kluyveromyces cell; that claims 54 and 56 through 58 on appeal are
drawn to a method for obtaining a polypeptide of interest by growing a transformed
Kluyveromyces cell; and that the cell and method of growing or culturing a cell are
patentably distinct statutory classes of invention (Appeal Brief, pages 13 and 14).
According to appellants,
Appellant has claimed a method of using a product, not a product itself;
appellant is entitled to a patent on that method, which has not been
claimed or disclosed before, that extends for its full statutory term of 17
years. [Appeal Brief, page 14]
The argument lacks merit. As stated in a similar context in In re Lonardo 119 F.3d 960,
968, 43 USPQ2d 1262, 1268 (Fed. Cir. 1997),
Restorative Care argues that the method of using the device would not
have been obvious over a claim to the device. We do not agree that there
is a patentable distinction between the method of using the device and the
device itself. The claimed structure of the device suggests how it is to be
used and that use thus would have been obvious.
We affirm the obviousness-type double patenting rejection of claims 54 and 56
through 58.
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