Appeal No. 1997-2133
Application 08/172,507
choices is likely to be successful in achieving a stabilized stem cell factor protein. The fact
that the claimed combination falls within the scope of possible combinations taught therein
does not render it unpatentably obvious. See In re O'Farrell, 853 F.2d 894, 903, 7 USPQ 2d
1673, 1681 (Fed. Cir. 1988).
Moreover, Appellant’s arguments directed to the unexpected results obtained from the
present invention are relevant. As stated in In re O'Farrell, 853 F.2d at 903, 7 USPQ2d at
1681:
There is always at least a possibility of unexpected results, that would then
provide an objective basis for showing that the invention, although apparently
obvious, was in law nonobvious.
Appellant argues that the claimed invention provides an unexpected improvement in
the level of stability of lyophilized stem cell factor, especially in view of the teachings away from
the claimed invention found in the cited references. To support this position appellant relies
on evidence presented in the specification, Example 1 and Figure 1. This evidence appears
to show that stem cell factor samples buffered with glutamic acid, histidine and sucrose in
varying combinations, are more stable and contain less cross-linked dimer degradation
product than formulations of the same pH buffered with a single amino acid or non-amino acid
(succinate). Brief, page 15.
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