Appeal No. 2001-1499 Page 3
Application No. 08/957,654
Claim 9 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Lezdey in view of Clark.
We affirm the rejections over Schwarz, and Schwarz in view of Clark. We
reverse all other rejections.
DISCUSSION
THE REJECTIONS UNDER 35 U.S.C. § 102:
Schwarz:
According to the examiner (Answer, page 3), Schwarz “teach a
composition for use in healing wounds in which the composition can comprise
0.5-90 mg/ml alpha-1-antitrypsin [AAT]. … An intended use limitation does not
impart patentability to a composition claim in which the composition is otherwise
anticipated by or obvious over the prior art.”
In response, appellants argue (Brief, page 11), “Schwarz merely lists AAT
as a potential ‘other’ inhibitor from among a list of plasminogen-activator-
inhibitors or plasmin-inhibitors. Absent a clear requirement that AAT is present
in a composition, Schwarz cannot be said to anticipate claim 7….” To this the
examiner argues (Answer, page 8), Schwarz’s “[e]xample 5 is an actual example
limited to the use of AAT (see column 4, lines 36-43, and Table 1) and thus is
evidence of anticipation.”
In addition, we note that appellants’ specification (page 2) discloses “the
wound dressing composition is a fluid or a gel comprising from 100ng to
10mg/ml, preferably 10 µg to 1mg/ml of AAT….” As set forth in example 5 of
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