Appeal No. 2002-2209 Page 8
Application No. 08/137,168
antivenom raised to a 1:1:1:1 mixture of the venoms.” Id., page 17, lines 13-16. The
data are described by appellant in the following manner:
The results are illustrated in Figure 2 which shows that the mixed
monospecific antivenom is of greater or equal potency than the
corresponding polyspecific antisera for neutralisation of venom PLA2
activity. Indeed, for three of the four venoms tested, significantly less
antivenom was required to achieve 50% neutralisation.
Id., page 17, lines 21-26. On the basis of these data, the examiner allowed claims 39
through 41 which are specific to the four rattlesnakes used in the examples.
In presenting their respective positions on appeal, appellant and the examiner
have argued why the data graphically depicted in Figure 2 of the application is or is not
commensurate in scope with the remaining claims, e.g., claim 37. However, we believe
this discussion is of little relevance when the strength of the prima facie case of
unpatentability for claim 37 is considered.
As set forth above, claim 37 reads upon a simple mixture of two monospecific
snake antivenoms. The Carroll reference relied upon by the examiner establishes that
such a mixture is not novel.
Carroll describes a polyvalent snake antivenom comprising immunoglobulins
having two or more monovalent subpopulations. Preferably, the polyvalent antivenom
has reactivity to C. atrox and C. adamanteus. Carroll, column 8, lines 52-64.
Importantly, Carroll states:
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