Appeal No. 2006-1335 Page 7
Application No. 09/888,734
The combination of Curtis, Livesey and Bhattacharva:
The examiner relies on the combination of Curtis and Livesey as set forth
above. According to the examiner, the combination of Curtis and Livesey does
not teach the subject matter of claims 20, 21 and 22, which depend from claims
14, 15 and 16 respectively. To make up for this deficiency the examiner relies on
Bhattacharva.
Appellant does not dispute the examiner’s findings with regard to
Bhattacharva. Instead, appellants assert (Brief, page 19), “[t]he rejection on this
basis is believed in error for the same reasons as those set forth above with
regard to [the combination of] Curtis and Livesey . . . .” We agree.
The examiner relies on Bhattacharva to teach “that histidine is a preferred
buffer for use in Factor VIII preparations to be lyophilized.” Answer, page 6. In
our opinion, Bhattacharva fails to make up for the deficiency in the combination
of Curtis and Livesey as discussed above. Accordingly, we reverse the rejection
of claims 14-16 and 20-22 under 35 U.S.C. § 103(a) as being unpatentable over
the combination of Curtis, Livesey and Bhattacharva.
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