Appeal No. 98-1591
Application 08/417,625
26). This argument is not convincing because anticipation is
the epitome of obviousness, see In re Fracalossi, 681 F.2d
792, 794, 215 USPQ 569, 571 (CCPA 1982) (“Though the PTO spoke
in terms of obviousness, the lack of novelty from the claimed
invention is a fact. Moreover, lack of novelty is the
ultimate of obviousness. ... An old composition cannot be
converted into an unobvious composition simply by inept
references to obviousness.”), and evidence of unexpected
results is not relevant to anticipation. See In re Malagari,
499 F.2d 1297, 1302, 182 USPQ 549, 553 (CCPA 1974).
Accordingly, we sustain the examiner’s rejection of claims 36,
37 and 40-45 under 35 U.S.C. § 103.
Rejection of claims 38 and 39
under 35 U.S.C. § 103
Claims 38 and 39 recite, respectively, clavulanic acid
and potassium clavulanate, each being free of recited
compounds which, appellants’ specification states (page 3,
lines 4-9), are antibiotics produced by Streptomyces
clavuligerus, which is the microorganism which produces
clavulanic acid (specification, page 1, lines 1-3).
The examiner argues that since clavulanic acid was
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