Appeal No. 95-3337
Application No. 07/759,100
We refer to the brief and reply brief and to the answer
for a complete exposition of the opposing viewpoints expressed
by the appellant and the examiner concerning this rejection.
OPINION
As correctly indicated by the appellant in the briefs,
none of the references applied by the examiner in her
rejection contains any teaching or suggestion that any of the
recombinant human milk proteins recited in the appealed claims
were known in the prior art at the time the here-claimed
invention was made much less that it would have been obvious
to use such recombinant proteins in an artificial human infant
formula so as to avoid the problem addressed by the appellant,
namely, the potential of viral contamination. As a result, it
is clear to us that we cannot sustain the examiner's Section
103 rejection of the appealed claims as being unpatentable
over Müeller in view of Lindblad and further in view of Raiha
and Friend and the Biotechnology article.3
3In our opinion, the exposition of obviousness set forth
in the dissent does not represent the rejection formulated by
the examiner and advanced on the subject appeal. Merely by
way of example, the EPO application, which the dissent depends
upon as support for an obviousness conclusion, is never
specifically referred to by the examiner in her Answer.
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