Appeal No. 95-3320
Application 07/974,510
the yolk are found at levels equal to that in hen serum”
(Tizard, p. 168, second full para.) is not sufficient basis
for a holding that the subject matter appellants claim is
unpatentable under 35 U.S.C.
§ 103. It is not enough for the art to recognize that
passively acquired antibodies allow newly hatched chicks to
resist vaccination in the same way that young mammals do
(Id.). Fowl and mammal antibodies are distinct, and the
examiner has not explained why a person having ordinary skill
in the art would have sought to use yolk antibodies obtained
from the eggs of domestic fowl immunized using human hair as
an antigen in hair care products when the art expressly
teaches persons having ordinary skill in the art to use
antibody-containing serum obtained from the blood of animals
immunized using human hair as an antigen in hair care
products.
The holding of prima facie unpatentability under section
103 stands or falls in this case with the examiner’s finding
that “[t]he motivation lies in selecting an alternative source
for the antibody which does not involve the removal of blood
from the animal and the inconveniences associated therewith”
(Examiner’s Answer, p. 4, first para.). The examiner’s
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