Appeal No. 2006-2745 Page 4
Application No. 09/966,119
negate the fact that Hardie teaches a Cohn Fraction II + III composition that is
suitable for oral administration. In addition, appellants’ claim 28 does not
preclude suspending the Cohn Fraction II + III composition in a suitable salt,
maintaining it at a suitable temperature and pH, and sterile filtering the
composition.
Therefore, the only difference between appellants’ claimed invention and
Hardie is that Hardie does not teach irradiating the composition.1 In this regard,
appellants assert (Brief, page 6), “[a]t best, Hardie merely suggests that Cohn
Fraction II + III paste can be [rendered] hepatitis-safe by heat pasteurization in
the presence of a stabilizer, which, in fact, teaches away from the present
invention.” We disagree. “A reference may be said to teach away when a
person of ordinary skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction divergent
from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553,
31 USPQ2d 1130, 1131 (Fed. Cir. 1994). Nothing in Hardie can be said to
discourage a person having ordinary skill in the art from using a different method
of rendering a Cohn Fraction II + III composition hepatitis-safe. According to
Hardie (page 4, lines 56-58), “Cohn Fraction II + III paste, the hepatitis safety of
which is not known, may be rendered so by methods known in the art such as by
heat pasteurization in the presence of a stabilizer.” As we understand it, Hardie
does not suggest that “heat pasteurization in the presence of a stabilizer” is the
only way to render a Cohn Fraction II + III composition hepatitis safe. To the
1 See Answer, page 4, wherein the examiner finds “Hardie does not teach that the composition is
irradiated.”
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