Appeal No. 1998-0350
Application No. 08/453,937
required about 1000 seconds. Thus, Appellant’s data show that, even in the
presence of antithrombin III, LACI and heparin together have much greater
anticoagulant activity than LACI alone.
Thus, even if the cited references supported a prima facie case of
obviousness, Appellant’s data show results that are unexpectedly superior to
what would have been expected based on the prior art. The evidence of
unexpected results provides a second basis for reversing the § 103 rejections. “If
rebuttal evidence of adequate weight is produced, the holding of prima facie
obviousness, being but a legal inference from previously uncontradicted
evidence, is dissipated.” In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984). “There is always at least a possibility of unexpected
results, that would then provide an objective basis for showing that the invention,
although apparently obvious, was in law nonobvious.” In re O’Farrell, 853 F.2d
894, 903, 7 USPQ2d 1673, 1681 (Fed. Cir. 1988).
Other Issues
Claims 3 and 6 recite a composition “in which heparin and LACI are in
proportions of from about 0.1 to about 4 units of said heparin and from about 0.1
to about 5 µg of LACI.” The specification states that “[u]se of from about 0.1 to
about 4 units of said heparin per ml of plasma in combination with from about
0.1 µg to about 5 µg of LACI per ml of plasma is preferred.” Page 4, lines 2-6
(emphasis added). Appellant may wish to consider whether the present wording
of claims 3 and 6 accurately reflects the intended scope of the claims.
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