Appeal No. 1996-2211
Application No. 08/018,546
We recognize appellants’ reference to unexpected results. At page 3 of their Brief, appellants
state “[a]s shown in Table 2, and contrasted with the transportation procedure which use no thiol, the
percentage of surviving embryos was increased very significantly and the percentage of excellent
embryos was increased dramatically.” To distinguish the results of Table 2 of the specification with6
results from studies in which thiol compounds were not present in the media, appellants state, in the
bridging paragraph of pages 5-6 of the Brief, “[t]he reference Yang . . . describes the effect of
temperature conditions in preserving fresh bovine embryos. It can be understood from this reference . .
. that the survival ratio of embryos is relatively high in incubation for a short time of 4 to 6 hours, but the
survival ratio drastically drops in incubation for a long time.” The results obtained by Takahashi, Table
1, are exactly the same as those set forth in appellants’ specification, Table 1, regarding the number of
embryos that developed to blastocyst stage when cultured in the presence of 10 or 50TM cysteamine.
The survival rates obtained by appellants are therefore expected not unexpected. In order for a
showing of “unexpected results” to be probative evidence of non-obviousness, it falls upon the
applicant to at least establish: (1) that there actually is a difference between the results obtained through
6Example 2, page 6, of appellants specification states that “[b]ovine embryos . . . cultured in Example
1 were used for transpotation [sic] experiments.” Upon consideration of Example 1, it is unclear to us whether
the bovine embryos used in the transportation experiments of Example 2, were originally cultured in the presence
or absence of a thiol compound. If prosecution is continued on this subject matter, appellants should clarify the
specifics of example 2’s control sample. For example, where the control embryos cultured in the presence or
absence of a thiol compound prior to transportation.
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