Ex parte HEIMBURGER et al. - Page 13




              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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