Appeal No. 1996-0657
Application 07/919,784
We disagree that Gooday supports a conclusion that it would have been prima facie
obvious to combine the known endochitinase and chitobiosidase in a weight ratio ranging from
3:1 to 1:1.2 to form a “biologically pure” anti-fungal composition. Nor does any disclosure in
Kuhn which we can find, or which the examiner relies on, including Fig. 1A-E, cure the
deficiencies of Gooday.
The Examiner’s Answer, in large part, constitutes an ex post facto effort to explain why
appellants’ combination of endochitinase and chitobiosidase gives rise to superior anti-fungal
activity. In our judgment, however, the applied prior art does not constitute an adequate
evidentiary foundation to support a conclusion of obviousness of appellants’ claimed
composition and method at the time the invention was made.
For these reasons, we conclude that the examiner has not established a prima facie case
of obviousness of claims 5, 6, 8, 12, and 13 and, accordingly, the rejection of those claims
under 35 U.S.C. § 103 is reversed. We find it unnecessary to discuss the rebuttal evidence in
appellants’ specification, and in the Harman declaration under 37 CFR § 1.132, executed
December 23, 1993, relied on to rebut any such prima facie case.
The examiner’s decision is reversed.
REVERSED
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