Appeal No. 2006-1547 Page 20
Application No. 10/114,668
35 USPQ2d 1801, 1804 (Fed. Cir. 1995) where a claim scope was construed as not to
be time-limited, but to read on products that at any time contained the claimed
proportion of ingredients.
Appellant’s argument that it was uncertain that polymerases could be deposited
by pulse-jet methods is also not credible. Appeal Brief, page 23. Notwithstanding the
fact that Church, in fact, describe pulse-jet deposition for polymerase, in ¶ 5 of the
application, it is admitted by Appellant that the use of pulse-jet to dispense proteins was
known in the prior art. This would have led the skilled worker to reasonably expect that
polymerases could be deposited by pulse-jet technology and still retain functional
activity. The statement in ¶ 48 of the application that pulse-jet deposition “does not
adversely affect the desired protein activity/functionality of the reagent of interest in the
fluid” does not offset this expectation since the admitted prior art indicates that at least
some activity levels would have been expected, and Appellant did not establish the
actual levels were unexpected.
Thus, we affirm the rejection of claims 29-38.
6. New rejections
Two new rejections were set forth in the Examiner’s Answer in which Church was
combined with Yu, and also independently with Ulfendahl. Since we have affirmed
rejections of most of the newly rejected claims for anticipation based on Yu or
Ulfendahl, we find it unnecessary to address the merits of either of the new rejections.
Claim 8 was included in the new rejections but not in the rejections for anticipation that
we have affirmed; however, we enter a new rejection of claim 8 infra.
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