Appeal No. 2006-1335 Page 6
Application No. 09/888,734
As we understand Livesey, the reference does not disclose or suggest
that trehalose by itself can be used stabilize or preserve native Factor VIII,
instead Livesey discloses (column 4, lines 5-9), “[b]y the proper selection of
cryoprotective agents and the use of preselected drying parameters, almost any
biological sample in suspension can be cryoprepared for a suitable desired end
use.” In this regard, we note that Livesey discloses (column 9, lines 5-11),
“[v]arious cryoprotectants can be used in the present invention. These include . .
. trehalose . . . human serum albumin and combinations thereof.”
Therefore, contrary to the examiner’s assertions, the evidence of record
does not paint as clear a picture as the examiner would have us believe. To
establish a prima facie case of obviousness, there must be both some
suggestion or motivation to modify the references or combine reference
teachings and a reasonable expectation of success. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). The evidence on this record
leads us to conclude that in method such as that set forth appellants’ claimed
invention a person of ordinary skill in the art would not have reasonably expected
that trehalose, in the absence of albumin, would have stabilized native Factor
VIII.
For the foregoing reasons we reverse the rejection of claims 14-16 under
35 U.S.C. § 103(a) as being unpatentable over the combination of Curtis and
Livesey.
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