Appeal No. 2001-1947
Application 08/333,202
Assuming, arguendo, that the examiner has presented a prima facie case of
obviousness, appellants provide argument, and rebuttal evidence in the form of a
Declaration under 37 CFR § 1.132 of Dr. Grimminger.
Appellants first argue that “[n]owhere does Friedmann disclose the purity of his
[purified diacetylrhein].” Brief, page 4. Appellants further argue that, contrary to the
examiner's assertion, Friedmann's pharmaceutical use of diacetylrhein cannot be
equated to less than 20 ppm aloe-emodin content. Appellants argue that evidence of
record1 shows that Proter, Friedmann's assignee, produces a diacetylrhein having a
much higher aloe-emodin content. Id.
In particular, appellants have made of record Analysis Certificates “which permit
a direct comparison of the product according to the state-of-the-art with the product of
the method of the now claimed invention.” Paper No. 15, page 5. The comparison
contains the results of the analysis of three batches of diacetylrhein prepared by the firm
of Proter, (U.S. Patent No 4,244,968 (Friedmann) and DE 27 11 493). The appellants
tested the Proter product and found an aloe-emodin content of 1400 ppm, 2000 ppm
and 900 ppm, respectively. Paper No. 15, page 6. In contrast, appellants provided
multiple batch analysis of diacetylrhein prepared by the claimed process which indicated
an aloe-emodin content of 2 ppm. Id. Thus, appellants argue there is no
1 See Response under 37 CFR § 1.111 dated March 17, 1997, pages 5-6 and
attachment 108 (Paper No. 15).
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