Appeal No. 99-0624
Application 07/749,482
with a pharmaceutically acceptable carrier, or be in a
pharmaceutically acceptable form (claim 128), and it is not
apparent where Lilly discloses each of these limitations. We
therefore do not sustain the rejection under 35 U.S.C.
§ 102(b).
Rejection under 35 U.S.C. § 103
The examiner argues that since Lilly’s “other antibiotic
substances” have been found to include clavulanates, it would
have been prima facie obvious to one of ordinary skill in the
art to purify the clavulanates and use them in conventional
forms for administration (answer, pages 24-25). This argument
is not well taken because the examiner has not established
that it was known in the art that Lilly’s “other antibiotic
substances” include clavulanic acid or clavulanates. The
examiner argues that Lilly’s characterization of the
antibiotic substances as such indicates that the substances
were separated and tested sufficiently to determine that they
are antibiotics and include clavulanic acid and clavulanates
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