Appeal No. 98-1591
Application 08/417,625
fermentations carried out following the Lilly process as
closely as possible produced any clavulanic acid in the
fermentation broth after 66 hours of fermentation (see id.).
Based on this evidence, appellants argue that clavulanic acid
is not inherently present in Lilly’s fermentation broth (see
id.).
One of ordinary skill in the art would have carried out
Lilly’s process such that the products desired by Lilly are
produced as in example 17. Thus, to overcome the prima facie
case of inherency addressed by the board in the previous
appeal, appellants have the burden of showing that when the
products desired by Lilly are produced using the Lilly
process, clavulanic acid is not necessarily also produced.
Appellants have not carried this burden.
The Elson declaration (exhibit 16) sets forth the results
of four experiments, R201 to R204. In each of experiments
R201 to R203, three batches were tested, whereas six batches
were tested in experiment R204. The data in the declaration
show that of the fifteen tests, after 66 hours of
fermentation, which is the duration of the fermentation in
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