(3) the extent to which claim 1 would preclude similar practices
which we hold to have been obvious over the practice which is
explicitly described in the prior art.
a.
It appears from the prior art that once upon a time the
"art" used natural hCG as the primary source for pharmaceutical
application. Apparently, natural hCG is quite stable, at least
if we are to believe EPO. According to EPO, some natural hCG
products do not need stabilizers, although we note that a
"bulking agent" amount of mannitol (now understood to be a
stabilizer) is said to have been added to hCG prior to
lyophilization. Natural contaminants are said to be a
possibility for explaining why natural hCG remained stable after
lyophilization. EPO reveals, however, that as more pure hCG came
to be, stabilization problems developed.
Somewhere along the line hCG in recombinant form [r-hCG]
came to exist--all would recognize that r-hCG would be quite
pure. Hence, given its purity, it reasonably would have been
expected from EPO that r-hCG would need a stabilizer. The PCT
application confirms what one skilled in the art would have
divined from EPO. According to the PCT application, sucrose is
"the solution" to stability problems.
To be sure, the PCT application at first blush would appear
to be a basis for one skilled in the art to tout sucrose in favor
of mannitol, saying that (1) the "most stable formulations"
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