(page 4, line 12) are those with sucrose and (2) sucrose "is much
better than mannitol" (page 19, line 15). The PCT application
nevertheless reveals that mannitol-stabilized hCG has been
commercially marketed under the mark ProfasiŽ. If a
pharmaceutical product has been marketed, as applicants' assignee
seems to say it was in the PCT application and their Reply Brief,
then mannitol stabilized hCG cannot be considered a technical
curiosity. Generally, companies do not market products which do
not work.
The record does not show the precise nature of the ProfasiŽ
product. However, counsel for applicants favors us with the
following discussion in the Reply Brief (page 2):
*** the commercial product which has been referenced
(Profasi) is a product of a company related to the real
party in interest herein and is urinary hCG and not
recombinant hCG as claimed.
While a statement of counsel cannot take the place of evidence in
the record, we accept counsel's representation for the purpose of
deciding the appeal.
b.
We find that the difference between
(1) the "commercial product" (ProfasiŽ) and other hCG
compositions described on pages 19-20 of the PCT
application and
(2) the subject matter of claim 1
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