Appeal No. 1997-2926
Application No. 08/376,299
dried microorganisms “overcomes the shortcomings of a culture
of microorganisms which are transported from the manufacture
to the area of use in a liquid medium (See column 1, line 60
to column 2, line 3).” (Answer, page 9).
We do not agree that Hoffmann discloses or suggests
“substantially the same” method as recited by the claimed
subject matter. Hoffmann does not disclose or suggest that
the use of freeze-dried microorganisms “overcomes the
shortcomings” of transporting a liquid medium (see col. 1, ll.
60-68). Hoffmann merely discloses freeze-drying or
lyophilizing as another technique presently used for
preserving the activity of bacteria (col. 1, l. 68-col. 2, l.
3). Furthermore, Hoffmann does not disclose or teach
transporting bacteria in lyophilized form wherein the bacteria
are reconstituted at the treatment site (see the Answer, page
4). Hoffmann only discloses that a drawback of freeze-drying
bacteria is that the “freeze-dried bacteria need to be
rehydrated prior to achieving optimal activity.” (Col. 2, ll.
13-15). Hoffmann is silent as to where the rehydration
occurs. “Where the legal conclusion [of obviousness] is not
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