Appeal No. 1997-3501
Application No. 08/253,232
Furthermore, the examiner urges that there are no claim limitations directed to the
binding abilities of the proteins being separated, and that this would support the relevancy
of Austen to the claimed process. Paper No. 36, page 4. However, we interpret claim 1
as requiring only the binding of Factor VIII:C to the anion exchanger, while vWF remains in
solution. Austen provides for the initial binding of Factor VIII complex (both Factor VIII:C
and vWF) to aminohexyl sepharose, and does not suggest how one of ordinary skill in the
art would alter this method to bind only Factor VIII:C while maintaining vWF in solution.
Thus, on this record, the examiner has failed to provide those facts or evidence
which would establish a prima facie case of obviousness within the meaning of 35 U.S.C.
§ 103 as to the claimed subject matter. Where, as here, the examiner fails to establish a
prima facie case, the rejection is improper and will be overturned. In re Fine, 837 F.2d
1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In view of the above, the rejection
of claims 3, 6, 8-10, 16, 19, 24-25 and 30 is reversed.
35 U.S.C. § 103
Claims 2, 4, 21, and 26-28 stand rejected under 35 U.S.C. 103 as obvious over
Austen, in view of Mathews, Mitra, Wang, Costello, Scopes, Harris as set forth above, in
further view of Kotitschke.
Kotitschke describes the use of colloidal silica to separate fibrinogen from citrate
plasma. The fibrinogen attaches to the colloidal silica while coagulation blood factors
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