Appeal No. 2001-1264 Page 2
Application No. 08/819,630
The references relied upon by the examiner are:
Yokohari et al. (Yokohari) 5,258,503 Nov. 2, 1993
Boos et al. (Boos) 5,403,917 Apr. 4, 1995
Okarma et al. (Okarma) 5,437,861 Aug. 1, 1995
Pliura et al. (Pliura) 5,545,328 Aug. 13, 1996
Charo et al. (Charo) 5,707,815 Jan. 13, 1998
The reference discussed by the merits panel is:
Hirai et al. (Hirai) 5,216,127 Jun. 1, 1993
There are two rejections pending against claims 7 through 10 and 13 under
35 U.S.C. § 103(a). The first is premised upon Boos, Pliura, and “prior art statement on
pages 1-5 of the specification.” The second is based upon Yokohari, Charo, and
Okarma.
We vacate the examiner’s rejections, make a new ground of rejection under
37 CFR § 1.196(b), and raise other issues for the examiner and appellants to consider
if prosecution is resumed.
Discussion
The claimed invention is directed to removing a chemokine except for interleukin-
8 by contacting a body fluid containing the chemokine with an adsorbent which
comprises a solid material having an anionic functional group. As explained by
appellants, chemokines are a subset of cytokines and are typically produced in humans
in response to an inflammatory event. Specification, page 1, lines 7-25.
As seen, one aspect of the claimed invention is that interleukin-8 is not removed
in performing the claimed process. We believe the genesis for this negative limitation is
found in the specification at page 6, lines 14-25 as follows:
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