Appeal No. 1998-0350
Application No. 08/453,937
Therefore, the clotting factors VIIa, Xa, and tissue factor would tend to
negate the anticoagulant effect of LACI and heparin, if the disclosed composition
itself were administered to a mammal. Therefore, factor VIIa, factor Xa, and
tissue factor affect the “basic and novel properties” of the composition, and their
inclusion in the composition of claim 1 is excluded by the “consisting essentially
of” language of the claim.
Claim 1 does not read on the composition disclosed by Broze. The
rejection under 35 U.S.C. § 102(b) is reversed.
3. The rejections under 35 U.S.C. § 103
The examiner rejected claims 4 and 5 as obvious over Broze and
Sandset, and rejected claims 3 and 6 as obvious over Broze, Sandset, Rapaport,
and Girard. The examiner argues that “Broze et al. teach the in vitro use of the
LACI/heparin composition as an anticoagulant,” and Sandset teaches that
administration of heparin causes a several-fold increase in plasma LACI activity.
Examiner’s Answer, pages 4-5.2
Appellant argues the references do not support a prima facie case of
obviousness because Broze’s data show that, in the presence of antithrombin,
the combination of LACI and heparin actually has lower anticoagulant activity
than LACI alone. Appellant argues that this teaching would not have led the
skilled artisan to combine LACI and heparin as an anticoagulant in whole blood,
2 The examiner relies on Rapaport and Girard for teaching the specific dosages recited in
claims 3 and 6. Examiner’s Answer, page 6. Because we conclude that Broze and Sandset
would not have led those skilled in the art to combine LACI and heparin at all, we will not further
discuss the teachings of Rapaport and Girard.
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