Appeal No. 2001-2271 Page 4
Application No. 08/971,839
the body of water within the treatment zone is maintained at a constant temperature,
and during which the biological agent is transferred to the aquatic animals.
Zohar describes “[a] method for administering compounds, including proteins . . .
non-protein drugs, and nucleic acids, to aquatic animals, especially fish, in an aquatic
medium containing the compound to be administered to enhance or effect the uptake of
the compound by the animal from the water” (column 1, lines 56-63). While Zohar
states that goldfish were held in a 180 liter aquarium maintained at 20°C prior to
ultrasonic treatment to enhance uptake of a peptide hormone (column 3, Example 1),
the examiner concedes that “there is no explicit teaching that the water temperature
[was] maintained during the ultrasound treatment” (Answer, page 7).
According to Heat Systems Ultrasonics, “[o]ne of the most important aspects of
sonifying with high power . . . is keeping the processed material cool. Over 150 watts of
energy is delivered to the solution . . . [it] is emitted as sound, becoming in turn
cavitation, and finally heat, which must be absorbed by a cooling bath as quickly as
possible” (page 1). The reference describes several cooling cell configurations and
procedures capable of “hold[ing]” or “maintain[ing]” samples at various temperatures
during ultrasonification, and which “greatly simplify the critical cooling procedure, so that
enzyme and biological activity are preserved” (id.).
According to appellants, “[i]n the present case, patentability is predicated on the
maintenance of a constant temperature within an underwater treatment zone during its
exposure to an acoustic field” (Brief, page 3). In their sole argument, appellants
emphasize that this limitation distinguishes Zohar from each of the claims on appeal,
and take exception to the examiner’s assertion that Zohar, either alone or in
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