Appeal No. 96-0352
Application 08/031,563
the exemplified product “was essentially unchanged by the process”, and that the “starting lysate as well
as the final product” had enzyme activities in the range now claimed. We point out that the starting
lysate used to produce this product was obtained from a preferred blood source, outdated human
blood. See Sehgal patent at column 5, lines 1-5 and column 9, lines 5-25. However, it would appear
that a polymerized hemoglobin produced from a non-preferred blood source using the Sehgal process
would not necessarily possess an enzyme activity in the range claimed.
In light of the above, it is evident that patented claim 1 of the Sehgal patent is a broad claim
directed simply to a polymerized hemoglobin which may be characterized as a polymerized protein, i.e.,
a single substance, while appealed claim 1 is directed to a two-component composition, i.e., a
polymerized hemoglobin in combination with the enzyme, methemoglobin reductase in specified
amounts (the claimed enzyme activity is observed only if the enzyme is present). Accordingly, it is
evident that patented claim 1 of the Sehgal patent could be infringed without literally infringing appealed
claim 1, for example, by a polymerized hemoglobin purified of all methemoglobin reductase or by a
polymerized hemoglobin having methemoglobin reductase in concentrations such that the enzyme
activity is outside the claimed range of appealed claim 1. Applying the infringement test set forth in In
re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 622 (CCPA 1970), it is apparent that “the claims do
not define identically the same invention”. Therefore, the rejection under 35 U.S.C. § 101 is reversed.
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