Appeal No. 1999-1162
Application No. 08/427,837
“copurified” in the claim as the term defines a method of preparation of the claimed
composition. If the product in a product-by-process claim is the same as or obvious from a
product of the prior art, the claim is unpatentable even though the prior product was made
by a different process. In re Thorpe, 777 F.2d 695, 227 USPQ 964 (Fed. Cir. 1985). In re
Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-93 (Fed. Cir. 1983).
In our view, for the reasons set forth above, the examiner has provided sufficient
evidence to establish a prima facie case of anticipation. After the PTO establishes a
prima facie case of anticipation, the burden shifts to the appellants to prove that the
subject matter shown to be in the prior art does not possess the characteristics of the
claimed invention. See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir.
1985); In re King, 801 F.2d 1324, 1327, 231 USPQ 136, 138 (Fed. Cir. 1986).
Appellants have submitted a Declaration by Michel Klein as evidence of differences
in properties between the composition of Ray and the composition of the claimed
invention. The Declaration indicates that the affinity chromatography procedure used in the
isolation and purification of the glycoproteins of the present invention does not lead to
denaturing of the glycoproteins by acid conditions and/or chaotropic agents. Declaration,
page 10. The Declaration refers to an affinity chromatography procedure involving lentil-
lectin or concanavalin A covalently linked to cross-linked Sepharose (column) or cellulosic
microporous membranes, and elution of the viral glycoproteins from the column with an
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