Appeal No. 2001-1044 Page 11
Application No. 08/881,216
comparative testing must be between the claimed invention and the closest prior
art.” (emphasis added)).
As for the specification’s Example 7, that example is prophetic and
discloses no actual data whatever. In no way can Example 7 be relied on to
show factual evidence of unexpected results.
All of the claims subject to this rejection stand or fall together. Appeal
Brief, page 2. We have concluded that claim 18 is rendered obvious by the prior
art, and therefore claims 19-21, 24, and 25 fall with claim 18. Since claim 25 falls
with claim 18, we need not address the examiner’s additional rejection of claim
25 over Birnbaum, Lopez-Berestein, Janoff, and Knight.
B. Birnbaum, Lopez-Berestein, Janoff, and Crowe
The examiner rejected claim 26 as obvious in view of the disclosures of
Birnbaum, Lopez-Berestein, Janoff, and Crowe. Claim 26 is directed to the
composition of claim 18 in lyophilized form and further comprising one of several
listed disaccharides or monosaccharides. The examiner relied on Birnbaum,
Lopez-Berestein, and Janoff for the same teachings discussed above. Crowe
was relied on to meet the additional limitation.
Crowe teaches “a method for preserving liposomes containing biologically
active molecules using a preserving agent.” Page 4. “Preferred preserving
agents include carbohydrates having at least two monosaccharide units, and
especially preferred compounds include the disaccharides sucrose, maltose, and
trehalose.” Pages 3-4. “The method involves either freeze-drying liposomes in
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