Appeal No. 2002-2209 Page 12
Application No. 08/137,168
Under these circumstances, appellant has in essence, conceded that the applied
references would establish a prima facie case of obviousness, the only issue being
directed to the weight and force of the proffered evidence of nonobviousness. Having
considered appellant’s evidence of nonobviousness, we agree with the examiner that it
is not commensurate in scope with claim 37 and, thus, to the extent, the applied
references also establish a prima facie case of obviousness, the prima facie case
stands unrebutted.
The evidence of nonobviousness relied upon by appellant are the data set forth
in the specification and graphically depicted in Figure 2 of this application. Clearly,
these data represent a single data point generated on the basis of venom obtained from
four related rattlesnakes. Claim 37 is much broader in scope. Appellant’s attempt to
extend this single data point throughout the scope of claim 37 hinges on a single
statement appearing in Theakston, i.e., Theakston’s conclusion that “‘mixed
monospecific antivenoms are in general better than polyspecific antivenoms.’
‘[Theakston et al., at page 124 (emphasis added).]’” Appeal Brief, page 13. Appellant
places great weight figuratively and literally on the phrase “in general” that appears in
this quote from Theakston. Appellant would interpret the phrase “in general” as
meaning that the results obtained the single data point involving four related
rattlesnakes should be extended to reach the conclusion that mixed monospecific
antivenoms will be better than polyspecific antivenoms across the board. We disagree.
In reviewing the Appeal Brief and Reply Brief, it does not appear that appellant in
pursuing this argument acknowledges that he is a co-author of the Theakston article.
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