Appeal No. 2002-2209 Page 6
Application No. 08/137,168
the monospecific antisera to produce a mixed monospecific antiserum results in
an antivenom which has all the populations of the monospecific serum, and
therefore conveys better protection, but also has the advantages of a polyspecific
antivenom in that the cross reactivity of the antivenom has been maximised.
Id., page 8, lines 10 through 25.
Discussion
1. Separate Argument of Claims.
Appellant states “[t]he claims of each group of claims under rejection stand or fall
together. Indeed, . . . all the appealed claims stand or fall together across all four issues
for appeal.” Appeal Brief, page 8, VII. Grouping of Claims. Thus, appellant not only
fails to argue any claim separately but also fails to argue any rejection separately.
Under these circumstances, we shall select claim 37 as representative of the claims
under rejection and shall decide all issues in this appeal on the basis of the patentability
of claim 37. 37 CFR § 1.192(c)(7).
2. Claim Construction.
Claim 37 is a product-by-process claim. The product set forth in this claim is an
isolated snake antivenom comprising a mixture of at least two monospecific IgG, F(ab0)2
fragment, or Fab fragment populations obtained from at least two antisera. Each
antiserum is separately raised to a venom from a different species of subspecies of
snake. Claim 37 then goes on to describe how the IgG, F(ab0)2 fragment, or Fab
fragment populations are obtained.
The patentability of product-by-process claims is determined based on the
product itself. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985)
(“[t]he patentability of a product does not depend on its method of production”
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