Appeal No. 2001-0355
Application No. 08/750,069
satisfy the hexenuronidase activity required by the independent claims on appeal by
reducing the amount of HexAX3 and thereby removing “a part of the hexenuronic acid
groups” (appealed independent claim 1). For this reason alone, it would be appropriate
to sustain each of the examiner’s § 103 rejections.
The examiner also considers the data of declaration Table 1 to reflect that the
prior art enzymes exhibit hexenuronidase activity by reducing the combined total of the
HexAX3 and HexAX2 quantities (e.g., the combined total of these quantities on the
substrate (i.e., 1140+2310=3450) was reduced after treatment with Pulpzyme HA (i.e.,
0+3210=3210)). We are aware that the application file record contains a response to
the examiner’s afore noted position which analyzes the declaration and explains that the
reduction in combined total quantities observed by the examiner, in fact, does not
evince hexenuronidase activity. The proffered analysis and explanation, however, are
not presented by the declarant under § 1.132. Rather, the analysis and explanation are
presented by the attorney of record in the previously mentioned communication filed
March 24, 2000 as paper no. 19. For this reason, the analysis and explanation must be
regarded as attorney argument, not evidence.
In sum, the declaration data plainly shows a reduction in total combined
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