Appeal No. 1997-2080
Application No. 08/159,939
enrichment and selection steps required by the claims. Shumin Na isolated thirty-six
strains of Aureobasidium from cocoons of the Canadian leaf-cutting insect. Those strains
that produced an extracellular polysaccharide, produced non-pigmented pullulan -- in
contrast to a reference strain, AS 3,3984, which produced darkly pigmented pullulan.
When the “cell morphology of AS 3,3984 and the relatively high polysaccharide-yield strain
A22 [were compared,] the results indicated that both strains had yeast and hypha
morphological characteristics.” Shumin Na, page 5. The authors conclude that “Strain
A22 is different than the pigmented varieties of Aureobasidium isolated . . . in the tropics
and subtropics.” Id., page 8. In our view, if anything, Shumin Na would suggest that
pigment production in Aureobasidium varies from strain to strain, rather than
morphological form. Kelly adds little or nothing to Shumin Na’s teachings, as the reference
merely teaches that “there is accumulating evidence that the elaboration of pullulan is
associated with the yeast-like phase of A. pullulans,” but does not indicate that pullulan
produced by yeast-like cells is unpigmented.
Finally, the statement of the rejection does not begin to address the various
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additional requirements of certain of the claims: e.g., recovery of pullulan of M 6 x 10 or
W
greater; heat treatment of harvested pullulan to inactivate degradative enzymes; and/or the
use of particular strains of A. pullulans. 35 U.S.C. § 103 requires that obviousness be
determined based on the claimed subject matter as a whole. Where, as here, the
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