Appeal No. 1997-2512
Application No. 08/118,905
and accurate dosages, easy and efficient administration without the need to remove the
drug from the package or change it to a powdered form for mixing with food, complete
identification of the drug, and tamper-evident packaging). See column 3, lines 41-64.
We have considered the experimental evidence in the present specification, but we
do not find this evidence to be sufficient to rebut this §103 rejection. Specifically, Table 1
shows a comparison of the results of freezing, in terms of viable titer, of a T. gondii
bradyzoite vaccine in straws according to the present invention with freezing the same
vaccine in conventional liquid nitrogen vials. Tables 2 and 3 show the efficacy of the
administration according to the present invention by comparing vaccinated cats with non-
vaccinated cats using a direct agglutination test. However, the tests shown in the
appellants’ specification do not compare the subject matter of claim 14 with the closest
prior art, which is Kidder. Moreover, the experiments summarized in Table 1 relate to
viable titer after freezing of the liquid for storage purposes, and appellants state that
DMSO stabilizer must be included as part of the vaccine preparation. See page 4, lines 5-
28 and page 7, lines 26-28 of the appellants’ specification. By contrast, claim 14 on
appeal is neither limited to liquid vaccines that require freezing for storage nor vaccines
that contain DMSO stabilizer. Therefore, we do not consider the claim on appeal to be
commensurate in scope with the evidence of nonobviousness. In re Kulling, 897 F.2d
1147, 1149, 14 USPQ2d 1056, 1058 (Fed. Cir. 1990).
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