Appeal No. 1999-2141
Application No. 08/657,164
from taipan snake venom and fail to cure the deficiencies of Lind taken with Fohlman and
Scopes. Interestingly, neither Tyler nor Bougis use the claimed 2-amino-2-
(hydroxymethyl)propane-1,3-diol)-HCl buffer in their reverse phase HPLC single pass
method.
Moreover, Appellant argues 1) the disclosed $ taipoxin isolation techniques of
Fohlman involve at least 4 steps, at least 3 of which are fractionation steps, whereas the
method of the invention includes a single fractionation step (Brief, page 6), 2) the use of
reverse phase chromatography (based on hydrophobic separation) in Tyler and Bougis
teaches away from the ion exchange column HPLC method of the claimed invention (Brief,
page 8), 3) the claimed method does not employ a pH gradient as in Scopes, and Scopes
teaches the use of potassium or sodium chloride as an ionic strength gradient to elute
proteins and does not suggest the use of Tris-HCl and water buffer (Brief, pages 7-8).
These arguments of appellant remain unrefuted by the examiner.
Rejections based on § 103 must rest on a factual basis with these facts being
interpreted without hindsight reconstruction of the invention from the prior art. The
examiner may not resort to speculation, unfounded assumption or hindsight reconstruction
to supply deficiencies in the factual basis for the rejection. See In re Warner, 379 F.2d
1011, 1017, 154 USPQ 173, 178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968). Our
reviewing court has repeatedly cautioned against employing hindsight by using the
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