Appeal No. 2004-1935 Page 8
Application No. 09/308,403
peroxidase used by Greenshields, it does not teach away from substituting sources of
hydrogen peroxide.
It may be true, as Dr. Greenshields states in his declaration, that he would have
expected in situ peroxide generation to cause depolymerization of hemicellulose,
regardless of what peroxidase enzyme was present along with the hydrogen peroxide.
However, we do not agree that that expectation would have been shared by a person of
ordinary skill in the art because it does not take into account the facts that (1) the
polymerization or depolymerization reaction is catalyzed by the peroxidase enzyme in
the reaction mixture, not the hydrogen peroxide, and (2) different peroxidase enzymes
catalyze different reactions.
Appellant also argues that the specification discloses evidence of unexpected
results. See the Appeal Brief, pages 12-13. This argument, however, relies on the
same flawed reasoning as the motivation-to-combine argument; that is, Appellant
argues that Crawford would have led the skilled artisan to expect depolymerization
instead of the observed polymerization. Since we do not agree, for the reasons
discussed above, that those skilled in the art would have expected the source of
hydrogen peroxide to change the reaction catalyzed by horseradish peroxidase, we do
not agree that those skilled in the art would have found the specification’s results
unexpected.
Appellant also argues that “neither Greenshields nor Crawford disclose or claim a
negative feedback loop to ensure that excess hydrogen peroxide production is
controlled, as in the claimed invention” and that the references do not teach all the
limitations of claim 36. Appeal Brief, pages 9 and 13, respectively.
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