Appeal No. 1997-1280 Page 3
Application No. 08/356,912
THE REJECTION
Claims 31 through 33 stand rejected under 35 U.S.C. § 103 as unpatentable over
Pennev.
OPINION
We have carefully considered all of the arguments advanced by appellants and the
examiner and agree with the examiner that the aforementioned rejection under 35 U.S.C. §
103 is well founded. Accordingly, we sustain the examiner's rejection.
The Rejection under § 103
As an initial matter, appellants submit that claims 31 through 33 stand or fall together
for purposes of this appeal. See Brief, page 3. Accordingly, we select claim 33, the sole
independent composition claim as representative of appellants’ invention and limit our
consideration to said claim. 37 CFR § 1.192(c)(7) 1995.
There is no dispute as to establishment of a prima facie case of obviousness.
Appellants do not even argue the question and we can assume prima facie obviousness as
they appear to do. The issue before us, is whether appellants have overcome the reference
to Pennev by their evidence submitted under 37 CFR § 1.132.
Appellants have submitted three Declarations by Michel Fortin under 37 CFR
§ 1.132. Appellants argue that two showings of record clearly demonstrate the patentable
features of the claimed compounds, which showings are commensurate in scope with the
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