Appeal No. 2001-0163
Application No. 08/951,502
of ordinary skill in the art to employ a packing material which is not supported on
silica gel. The mere fact that the prior art could be modified as proposed by the
examiner is not sufficient to establish a prima facie case of obviousness. See In re
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992). Consequently,
the Examiner’s rejection of claims 11 to 21 over Yamashita is reversed.
The Examiner also rejected claims 11 to 21 under 35 U.S.C. § 103 as obvious
over the combination of Yamashita, Ikeda ‘852 and Ikeda ‘635.
Appellant’s claims 11 and 21 both are directed to a method of separation of
optical isomers using a simulated moving bed chromatographic apparatus. The
claimed invention requires the use of particles of polysaccharide derivatives which are
not supported on a silica gel carrier.
The Examiner asserts Yamashita differs from the claimed invention in the
recitation of the specific adsorbent packing material. To remedy this deficiency the
Examiner relies on Ikeda ‘852 and Ikeda ‘635. According to the Examiner Ikeda ‘635
and ‘852 disclose that Ikeda’s carbamate of a polysaccharide has a larger separation
factor than Yamashita and is suitable for use in preparative liquid chromatography.
(Answer, p. 4).
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