Appeal No. 2001-1973 Page 6
Application No. 08/734,184
Appellants argue that Timmons “concludes on page 181 that the ‘critical
levels of each of these factors remain to be found.’ That statement clearly leads
away from the present invention which defines all the factors for the optimal
harvesting of single algae as defined in the present claims.” Appeal Brief, page
8.
This argument is not persuasive. First, “the question whether a reference
‘teaches away’ from the invention is inapplicable to an anticipation analysis.”
Celeritas Techs., 150 F.3d at 1361, 47 USPQ2d at 1522. In addition, if
Appellants’ intended meaning was that Timmons does not anticipate because it
does not disclose “all the factors for the optimal harvesting of single algae,” the
argument is still unpersuasive. It is true that, in addition to the six manipulative
steps recited above, claim 1 “further comprises the step of establishing
concentrations of constituent elements in the aqueous medium for unialgal
harvesting for promoting optimum growth rates of the microalgae.”
The specification defines “optimal conditions” to mean “those that allow a
seed stock of microalgae to grow and outcompete predators, contaminants and
other potential scavengers.” Page 9. The claim language thus requires
establishing concentrations of elements in the medium such that the medium
promotes growth at a rate that will outcompete contaminants and other potential
scavengers.
Timmons meets this limitation as well. Indeed, the whole point of the
experiments described in Timmons was to establish parameters to promote
optimum growth rates. See, e.g., page 167: “The goal of these experiments is to
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