Appeal No. 2006-1335 Page 5
Application No. 09/888,734
factor VIII demonstrates that trehalose is recognized by the art as being a
cryoprotectant suitable in a number of varied applications.” In this regard, we
agree with Helgerson (Declaration, paragraph 3), that the examiner has
overstepped the evidence on this record. While it is undisputed that Curtis
discloses a method for preparing a purified and stable activated Factor VIII, as
appellant points out - the evidence with regard to Livesey is not as persuasive as
the examiner makes it out. According to appellant (Reply Brief, page 4), “Livesey
does not teach the reader that trehalose, on its own and without albumin, can be
used to stabilize Factor VIII.” In this regard, we note the examiner’s reliance on
claim 17, and column 9, lines16-24 of Livesey to teach that the biological material
comprises Factor VIII.5 Answer, page 4. Claim 17 depends directly from claim 1
– but claim 1 does not limit the “cyroprotectant” to be used. In this regard, we
direct the examiner’s attention to Livesey’s claim 8, which depends ultimately
from claim 1 and further limits the cyroprotectant to “a vitrification solution
comprising a mixture of” various chemicals. Thus, consistent with Livesey’s
specification, the cyroprotectants are contemplated to be used “alone or in
combination with other cyroprotectants or with additional components. . . ”
(Livesey, column 9, lines 33-34) including albumin (Livesey, column 9, lines 5-
15).
requirement in any of appellant’s claims. Accordingly, we are not persuaded by this argument.
5 Interestingly enough, the examiner does not address what is encompassed by the term
“comprises” as it appears in claim 17 of Livesey, which opens the claim to the inclusion of other
components including e.g., albumin. In addition, we note that the only other disclosure of Factor
VIII in Livesey appears at column 4, lines 57-64, wherein Livesey discloses that “[t]he present
invention can be used to preserve many different types of biological materials. It is anticipated
that the method can be used to preserve materials such as . . . Factor VIII . . . .”
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