Appeal No. 1999-1162
Application No. 08/427,837
appropriate competing sugar. Declaration, page 4. To the extent that appellants urge that
these isolation and purification steps would likely yield a product differing from the
composition of Ray, we note simply that the existence of different characteristics resulting
from these process steps has not been established and any alleged differences are not
reflected in the claim before us.
The declarant does suggest that the composition of the invention differs from the
composition of Ray, because the vaccine composition of Ray requires a dosage of
80 ug for the induction of an immune response, whereas the claimed composition only
requires a dose of 30 ug. Declaration, page 10. However, the examiner responds to this
argument, finding that Ray describes a 20 microgram dosage of its composition, when
intranasally administered, induced significant resistance to challenge infection. Ray, page
784, Table 1. For this reason, the examiner concludes that “evidence of a difference in
immunogenicity” between the composition of Ray and the claimed composition has not
been demonstrated. Answer, page 8. We agree.
Thus, on this record the Appellants have not come forward with sufficient evidence
to satisfy the burden of showing that the claimed composition does not possess the
characteristics of the prior art composition of Ray. In re Best, 562 F.2d 1252, 1255, 195
USPQ 430, 433-34 (CCPA 1977); In re Ludtke, 441 F.2d 660, 664, 169 USPQ 563, 566-
7
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