Appeal No. 1998-0350
Application No. 08/453,937
obvious over the same Broze reference cited by the examiner in this case, either
alone or in combination with other prior art. The panel in that appeal affirmed the
rejections.
We note that the record in this appeal differs substantially from that of the
‘083 grandparent application. During the prosecution of the instant application
and the intervening parent application, the claims were amended and the record
was supplemented with additional arguments and evidence, including the three
declarations referred to above. The changed record requires us to consider the
merits of this case anew, uninfluenced by the decision that was reached in the
previous case. See In re Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686
(Fed. Cir. 1986) (“[I]f the applicant comes forward with reasonable rebuttal,
whether buttressed by experiment, prior art references, or argument, the entire
merits of the matter are to be reweighed.”). See also In re Rinehart, 531 F.2d
1048, 1052, 189 USPQ 143, 147 (CCPA 1976) (“When prima facie obviousness
is established and evidence is submitted in rebuttal, the decision-maker must
start over. . . . [A] final finding of obviousness may of course be reached, but
such finding will rest upon evaluation of all facts in evidence, uninfluenced by any
earlier conclusion reached . . . upon a different record.”).
2. The rejection under 35 U.S.C. § 102(b)
The examiner rejected claims 1 and 2 as anticipated by Broze. Claim 1 is
directed to a composition “essentially free from antithrombin and consisting
essentially of LACI and an anticoagulant sulfated polysaccharide,” such as
heparin. Broze discloses a composition containing LACI, activated factor VII
4
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