Appeal No. 2005-1344 Page 16
Application No. 08/468,610
depending on the buffer salts present, and that the resin “remains charged at the
pH where it binds the protein.” Becker declaration, paragraph 9. We note,
however, that declarant makes no attempt to clarify whether “less than 5% of the
ionizable functionalities on the resin are charged at the pH of target protein
binding,” which is the definition set forth in appellants’ specification for the term
“electrostatically uncharged”. See e.g., specification, page 18. Further, while
declarant recognizes that resin properties will change depending on the buffer
system that is used (see Declaration, paragraph 9), declarant makes no attempt
to address the effect that Boardman’s buffer may have on the Amberlite IRC 50®
resin.
Upon review of the “Rohm and Haas product literature”, specifically figure
3, it appears that at a pH of 5.0, the resin is “electrostatically uncharged”, as
defined at page 18 of appellants’ specification, in all three of the titration curves
set forth in figure 3. Thus, while we agree with declarant that the Amberlite IRC
50® resin is electrostatically charged at a pH where it binds the protein, e.g., pH
5.0, there is no evidence on this record to dispute that the charge on the resin is
not within the scope of appellants’ claimed invention.
Further, we note the examiner’s recognition that the Amberlite IRC 50®
resin has a “capacity of 10 Meq/g.” Nevertheless, the examiner points out
(Answer, bridging paragraph, pages 14-15), Figure 1a of Boardman,
demonstrates that “[a]t pH 5.0, at the lower sodium concentration … (curve ‘B’),
the resin takes up about 0.4 mg-equivalent sodum ions/gm of dry resin.”
According to the examiner (id.), this means that less than 5% of the ionizable
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