Appeal No. 95-3320
Application 07/974,510
Tizard teaches at page 168, second full paragraph:
Chicks may acquire antibody from the hen via the
yolk. Antibodies are readily transmitted to the yolk
while still in the ovary, and in the fluid phase of the
yolk are found at levels equal to that in hen serum. . .
. Because of
this passively acquired antibody, the newly hatched chick
is resistant to successful vaccination in the same way
that young mammals are.
In re Dow Chem. Co., 837 F.2d 469, 5 USPQ2d 1529 (Fed.
Cir. 1988), instructs at 473, 5 USPQ2d at 1531:
The consistent criterion for determination of
obviousness is whether the prior art would have suggested
to one of ordinary skill in the art that this process
should be carried out and would have a reasonable
likelihood of success, viewed in light of the prior
art. . . . Both the suggestion and the expectation of
success must be founded in the prior art, not in the
applicant’s disclosure.
The above criterion for determination of obviousness, as it
applies to the facts in this case, raises the following
questions:
(1) Would Widder’s teaching have suggested to one having
ordinary skill in the art to use antibody-containing serum
which has been obtained from the blood of a domestic fowl
immunized using human hair as an antigen in hair care
products?
(2) Would Widder’s teaching reasonably have led one
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