Appeal No. 2001-1973 Page 8
Application No. 08/734,184
have concluded, supra, that claims 1-9 are anticipated by Timmons. Therefore,
we need not consider whether claims 1 and 5-9 are also anticipated by Clement.
The examiner combined Clement with Dunahay in order to meet certain
limitations of the dependent claims. For example, claims 4 and 10 are directed to
the method of claim 1, but include the additional limitations that “the harvesting
step comprises removing about 90% of the culture medium” (claim 4) or that “the
tank is generally cylindrical having a diameter of about 18 inches and a height of
about five feet, and the tank is made of fiberglass material” (claim 10).
The examiner conceded that Clement does not teach these limitations.
See the Examiner’s Answer, page 7: “The claimed subject matter differs from
the disclosure of Clement et al[.] in that the nutritive elements of silicate and iron
chloride and vitamin B12, and harvesting of Chaetoceros algae in an amount of
about 90% from a tank having a diameter of 18 inches and a height of about five
feet made of fiber glass is not taught.”
The examiner cited Dunahay to make up these differences, but did not
point to any specific disclosure in Dunahay that would have suggested these
limitations to a person of ordinary skill in the art. See the Examiner’s Answer,
pages 8-9:
[I]n order to maintain a constant algae concentration, as taught by
Clement et al[.], one of ordinary skill would have expected that
about 90%, or almost all, of the algae would be required to be
removed and replenished as required by Clement et al. . . .
Therefore, the harvesting of about 90% of the algae is well within
the skill of an ordinary artisan seeking the desired optimal
conditions, as well as, the expected result of maximal algae growth
output during a continuous culturing process.
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