Appeal No. 2003-0528 Page 11
Application No. 09/314,841
evidence (id.), the examiner concludes “[o]ne skilled in the art would reasonably
have expected success in using POPC and POPS as the synthetic phospholipids
in the reagent and methods of B[rucato], B[utler] and S[chwinn] or B[rown],
B[rucato], B[utler], and S[chwinn]] because H[awkins] teaches that POPS and
POPS [sic] can be combined with rTF in a method similar to that taught by
B[rown]….”
However, as discussed, supra, the examiner has not provided the
evidence necessary to demonstrate that the Brucato, Butler, Brown, or Hawkins
prothrombin reagents could be modified in a manner that would retain shelf life
as disclosed by Butler. Accordingly, we reverse the rejection of claims 12, 13, 41
and 42 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Brucato in view of Butler, Schwinn and Hawkins. For the same reason, we
reverse the rejection of claims 24 and 25 stand rejected under 35 U.S.C. § 103
as being unpatentable over Brown in view of Brucato, Butler, Schwinn and
Hawkins.
Brucato in view of Butler, Schwinn and Prestrelski with or without Brown:
Brucato, Butler, Brown and Schwinn are relied upon as set forth above.
The examiner recognizes, however, that Brucato, Butler, Brown and Schwinn do
not teach reagents dried at a selected temperature and humidity, which are not
lyophilized. To make up for this deficiency the examiner relies on Prestrelski.
According to the examiner (Answer, page 11), Prestrelski teach “air-drying of
proteins at ambient temperature (about 20 [°]C) at low humidity…..” The
examiner further notes (id.), Prestrelski teach “that excipients such as alanine,
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