Appeal No. 95-2970
Application No. 07/995,106
similarities between the claimed polypeptide composition and
the polypeptide composition disclosed by Klein. The examiner
should weigh the significance of such similarities as: (1)
the source of the two polypeptides appear to be the same,
compare Klein at column 5, line 24 through column 6, line 23,
with appellants' specification, pages 9-10; (2) the disclosed
utility is the same; and (3) the parameters of molecular
weight, although not identical, appear to be closely related.
We are mindful that, in the specification, appellant suggests
that the molecular weight in claim 10 is critical or gives
rise to unexpected results. Yet the specification contains no
specific comparison of the claim designated polypeptide
mixture, without dextrose, with the closest prior art mixture
disclosed by Klein. Taking into consideration these
similarities, the examiner should re-evaluate patentability of
claim 10 in light of Kline. In so doing, the examiner should3
consider the claimed subject matter as compared to Klein in
light of the legal principles discussed in such cases as: In
re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); In
3These points were not relied upon or addressed by the
examiner in this appeal.
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