Appeal No. 2004-1212 Page 5
Application No. 09/316,624
Among other things, Friedland discloses that the components of Product R
and Reticulose® have different molecular weight distributions, as well as different
ratios of UV absorbancies. See Table IV (column 10). Friedland also reports
that, although Kochel characterized the low molecular weight fraction of
Reticulose® as inhibiting phagocytosis by neutrophils (see Kochel, column 2,
lines 46-55), Product R does not have similar activity. See Table IV. Finally,
Friedland compares the starting materials for ten-liter batches of Reticulose® and
Product R (Table V) and concludes that “the initial protein concentration for the
RETICULOSE® preparation is twice as much as that for the Product R
preparation.” Column 10, lines 44-46.
We agree with Appellant that the evidence of record shows that the
Product R recited in the instant claims is different from the Reticulose®
preparation disclosed by Kochel. We therefore reverse the rejection under 35
U.S.C. § 102(e).
We note in closing that the examiner may have intended the rejection to
be based more on obviousness than anticipation: Kochel does not isolate any
low molecular weight fractions of Reticulose®, or describe how to do so, but the
section of Kochel cited by the examiner as teaching treatment of rheumatoid
arthritis states that a low molecular weight fraction of Reticulose® is “effective in
treating auto immune diseases.” Column 3, lines 1-11. If the examiner is of the
view that Kochel would have made obvious the instantly claimed method, even
though it does not anticipate, a rejection under 35 U.S.C. § 103 may be
appropriate.
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