Appeal No. 2002-2209 Page 13
Application No. 08/137,168
As such, the Theakston article is less than an independent review of the single data
point and any interpretation and extension of that single data point must be viewed in
the context of appellant’s co-authorship of the article. Furthermore, Theakston itself
sets forth the reason why the single data point should not be extended in the manner
appellant desires. Theakston states that the so-called dilution effect which appellant
argues teaches away from mixing monovalent serums as required by claim 37 on
appeal to produce a polyvalent sera is minimized because many venoms are highly
cross reactive. Thus, experimental work relied upon to establish that mixed monovalent
sera is more effective than polyvalent sera must be evaluated in light of the specific
snake venoms used and their cross reactivity. The greater the cross reactivity, the less
the so-called dilution effect would be expected to occur which undercuts appellant’s
argument in regard to unexpected results. Clearly, comparing the vast scope of claim
37 on appeal with the single data point relied upon by appellant based upon four related
rattlesnakes, we agree with the examiner’s conclusion that the proffered data is not
commensurate in scope with claim 37.
Summary
As explained above, we have decided all four of the pending rejections based
upon the patentability of claim 37. Having found that claim 37 lacks novelty and that
examiner’s case of prima facie obviousness stands unrebutted, we affirm all four of the
examiner’s rejections.
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