Appeal No. 98-1591
Application 08/417,625
page 8). We limit our consideration of the first group of
claims to exemplary claim 42. See In re Ochiai, 71 F.3d 1565,
1566 n.2, 37 USPQ2d 1127, 1129 n.2 (Fed. Cir. 1995); 37 CFR
§ 1.192(c)(7)(1995).
Rejection of claims 36, 37 and 40-45
under 35 U.S.C. § 103
In the first application (Application 05/569,007) in the
chain of applications which led to the present application, a
claim to clavulanic acid was rejected under 35 U.S.C. § 102(b)
over Lilly, and this rejection was appealed to the board. The
board, in reliance upon In re Best, 562 F.2d 1252, 195 USPQ
430 (CCPA 1977), and In re Sussman, 141 F.2d 267, 60 USPQ 538
(CCPA 1944), affirmed this rejection on the ground that
because Lilly’s fermentation broth and that of appellants are
prepared in the same manner, it is reasonable to presume that
Lilly’s fermentation broth inherently contains clavulanic acid
(exhibit 12, page 4). The board stated that appellants had3
the burden of rebutting the presumption that Lilly’s
fermentation broth inherently contains clavulanic acid, and
3The exhibits referred to in this opinion are in the
appendix to appellants’ brief.
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