Appeal No. 2006-2575
Application No. 10/025,567
claimed invention, for the artisan's knowledge of the prior art and routine
experimentation can often fill gaps, interpolate between embodiments, and
perhaps even extrapolate beyond the disclosed embodiments, depending
upon the predictability of the art.” AK Steel Corp. v. Sollac, 344 F.3d 1234,
1244, 68 USPQ2d 1280, 1287 (Fed. Cir. 2003) (citation omitted).
We agree with Appellants that the Examiner has not established that
practicing the full scope of the claims would have required undue
experimentation.
The Specification (page 1) discloses that protein-wasting
microorganisms were known in the art, and that degrading protein within the
digestive tract to ammonia is one mechanism by which the organisms waste
dietary protein. The Krause3 reference, cited by the Examiner in the
obviousness rejections, also discusses protein wasting in food animals by
ammonia production. (Krause 815, left col.) As argued by Appellants,
Stolle provides an extensive list of digestive tract pathogens to which
antibodies can be raised in chickens. (Stolle, col. 5, ll. 1-35.)
Thus, one skilled in the art would have known the identities and
properties of protein-wasting organisms and other undesirable digestive tract
organisms. In our view, given this knowledge, the experimentation required
to identify colony-forming immunogens would not have been undue. We
therefore do not agree with the Examiner (Answer 26) that the Specification
3 Krause et al., “An rRNA Approach for Assessing the Role of Obligate
Amino Acid-Fermenting Bacteria in Ruminal Amino Acid Deamination,”
Applied and Environmental Microbiology, Vol. 62, No. 3, pp. 815-821
(1996).
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