Appeal No. 96-0352
Application 08/031,563
This is an appeal pursuant to 35 U.S.C. § 134 from the final rejection of Claim 1.
The references of record relied upon or discussed in the brief and the answer are:
Scheinberg 4,049,673 Sept. 20, 1977
Chiang et al. (Chiang) 4,485,174 Nov. 27, 1984
Jacobson et al. (Jacobson) 4,711,852 Dec. 8, 1987
Bonaventura et al. (Bonaventura) 4,761,209 Aug. 2, 1988
Saunders 4,835,097 May 30, 1989
Sehgal et al. (Sehgal patent) 5,194,590 Mar. 16, 1993
Appealed claim 1 stands rejected under 35 U.S.C. § 101 as claiming the same invention as that
defined by patented claim 1 of the Sehgal patent. Alternatively, appealed claim 1 stands rejected under
the judicially created doctrine of obviousness-type double patenting as unpatentable over patented
claim 1 of the Sehgal patent. We reverse.
Patented claim 1 of the Sehgal patent reads as follows:
1. Essentially tetramer free, cross linked, polymerized hemoglobin
wherein the hemoglobin is from human blood.
Appealed claim 1, reproduced below, includes a further limitation concerning a specific amount
of methemoglobin reductase activity:
1. Essentially tetramer free, cross linked, polymerized hemoglobin
wherein the hemoglobin is from human blood and having
methemoglobin reductase enzyme activity ranging from about 1.0 to
about 2.0 units of enzyme activity.
The examiner’s 35 U.S.C. § 101 double patenting rejection is based on the examiner’s
contention that the “enzyme function” of the appealed claim is an inherent property of the
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