Appeal No. 2005-0548
Application No. 09/839,164
Rejections II and III
The examiner argues that the claimed subject matter is anticipated by the
teachings of Tame and Hoffman. The examiner relies on Tame’s disclosure of alpha-
globin in a buffer solution (i.e., a pharmaceutically acceptable carrier) which was diluted
to 0.25 mg/ml (p. 763, col. 1, para. 1). Answer, p. 3. The examiner also points out that
Tame discloses the addition of beta globin to the alpha globin solution (p.763, col. 1,
para. 1). Id. With respect to the Hoffman patent, the examiner relies on the disclosure
of potassium phosphate buffer containing 0.3 mg/ml alpha globin. Id., p. 4. The
examiner points out that Hoffman further discloses that a Tris buffer solution containing
5.0 mg/ml of beta globin was added to the alpha globin. Id. The examiner argues that
Tame and Hoffman disclose buffer solutions containing 0.1 mg to 6.0 gm of alpha globin
or alpha globin and beta globin. Id., pp. 3 and 4. Thus, the examiner contends that
said solutions anticipate the claimed pharmaceutical compositions.
In response, the appellants argue that because neither Tame nor Hoffman
disclose the volume of their solutions, the publications do not describe a solution
containing 0.1 mg to 6.0 gm of alpha and/or beta globin. Brief, pp. 4-5. The appellants
contend that the examiner is arguing compositions which could be made and, thus, the
rejection is based simply on probability or possibility, rather than an actual disclosure.
Id., p. 5.
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