Appeal No. 1999-0031
Application No. 08/168,438
claiming a new benefit of an old process cannot render the process again
patentable.”).
Since the cited reference provides a reasonable basis for concluding that
the disclosed process inherently possessed all of the properties of the claimed
process, the burden shifts to Appellants to provide evidence that their process
differs from that of the prior art. See In re Spada, 911 F.2d 705, 708, 15
USPQ2d 1655, 1658 (Fed. Cir. 1990) (“[W]hen the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.”). Appellants have
provided only argument, not evidence, to support their position. Attorney’s
argument cannot take the place of evidence. See In re Pearson, 494 F.2d 1399,
1405, 181 USPQ 641, 646 (CCPA 1974). The rejection under 35 U.S.C.
§ 102(b) is affirmed.
2. The rejections under 35 U.S.C. § 103.
The examiner rejected all of the claims as obvious in view of the combined
teachings of Heinmets, either of Sugiyama or Hodgson, and Biorad.2 Heinmets
teaches a process for inactivating viruses in plasma by adding one of several
dyes (such as methylene blue) to the plasma, irradiating the mixture, and
removing the dye using an ion exchange column. Heinmets, however, does not
teach removing dye from treated plasma using “macroporous polymeric beads,”
2 Biorad was relied on only with respect to claim 9.
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