Appeal No. 98-1591
Application 08/417,625
that appellants did not carry that burden (exhibit 12,
page 5).
Subsequent to the board’s decision, appellants submitted
two declarations by Dr. Elson (exhibits 13 and 16) and one
declaration by each of Dr. Hermann and Dr. Holmes (exhibits 14
and 15, respectively) which, appellants argue, show that the
product produced by the Lilly process does not necessarily
include clavulanic acid (brief, page 13). For the reasons set
forth in the prior board decision, Lilly’s process prima facie
inherently produces clavulanic acid in the fermentation broth.
In view of this prima facie case and appellants’ rebuttal
evidence thereagainst, we begin anew an analysis to determine,
based on the evidence of record as a whole, whether the
examiner’s rejection of appellants’ claim 42 over Lilly is
proper. See In re Rinehart, 531 F.2d 1048, 1052, 189 USPQ
143, 147 (CCPA 1976).
Appellants argue that in a declaration by Elson
(exhibit 16), Lilly’s fermentation and extraction process is
reproduced as closely as possible (brief, page 18).
Appellants argue that only five of fifteen separate batch
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