Appeal No. 98-1591
Application 08/417,625
thought the minor factors were clavulanic acid or penicillin N
and deacetoxycephalosporin C but, rather, whether clavulanic
acid is inherently produced in Lilly’s fermentation broth when
Lilly’s desired products are produced.
Appellants argue, in reliance upon an Elson declaration
(exhibit 13), that any clavulanic acid formed in Lilly’s
fermentation broth would not be removed from the ion-exchange
column used to separate Lilly’s A16886I and A16886II factors
from the broth unless a sufficient volume of eluant, which is
not disclosed by Lilly, is used (brief, pages 12-17).
Appellants further argue, in reliance upon the Hermann
declaration (exhibit 14), that any clavulanic acid removed
from the column would be destroyed in the next steps of
Lilly’s isolation process (brief, page 17). These arguments
are not persuasive because they are directed toward the fate
of the clavulanic acid after the fermentation step. In so far
as the § 103 rejection of exemplary claim 42 is concerned, the
relevant issue is whether clavulanic acid necessarily is
formed during the fermentation step along with Lilly’s desired
products. As pointed out in the prior board decision (exhibit
10, page 8), appellants’ claim to clavulanic acid does not
-9-9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007