Appeal No. 2001-1298 Page 3
Application No. 08/304,602
does not diminish the requirement for actual evidence. That is, the
showing must be clear and particular.
In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999)
(citations omitted). The suggestion to combine prior art references must come
from the cited references, not from the application’s disclosure. See In re Dow
Chemical Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988).
On this record, there are three separate rejections; each, however, relies
on the same primary reference (Drabick), therefore we will discuss the rejections
together.
According to the examiner (Answer, page 3), Drabick “teach a conjugate
comprising the surface active antibiotic Polymyxin B (PMB) covalently linked to
IgG which specifically binds Paeruginosa and has antiendotoxin activity.” The
examiner, however, recognizes (Answer, page 4) that Drabick “do not teach that
PMB and IgG are linked via a cross-linker….” To make up for this deficiency in
Drabick, the examiner finds (id.) that appellant’s specification admits that “cross-
linking agents for cross-linking biological molecules were known and available in
the art at the time [the] claimed invention was made.”
Therefore, the examiner concludes (id.), “[i]t would have been prima facie
obvious to one of ordinary skill in the art at the time the claimed invention was
made to cross[-]link IgG and PMB using any of the numerous cross-linking
agents known to those of ordinary skill in the art.”
In response, appellant argues (Brief, bridging paragraph, pages 9-10):
[I]n the present patent application, the claims all recite that
the binding of the components of the conjugate is via a
cross-linker. The Drabick abstract does not mention this
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