Appeal 2006-3259
Application 09/785,188
Claim 24.1 The sol [according to claim 15, wherein: said hydroxy
metallate is formed by hydrolysis of a sol-gel precursor], further
comprising an organic solvent comprising an organic by-product
arising from the hydrolysis of said sol-gel precursor.
ISSUE ON APPEAL
Claim 26
The Examiner contends the “method of claim 26 [is] the same as the
method . . . disclosed by Uo et al except that the claim[] require[s] a
vegetative cell instead of yeast spores.” Answer 5. The Examiner further
contends Hino cures this deficiency: “It would have been obvious to use
vegetative yeast cells in place of the yeast spores in the method of Uo et al
as suggested by Hino . . . . Using vegetative cells not in spore form would
have been expected to be advantageous due to simplification resulting from
not having to convert vegetative cells to spores and then covert the spores to
vegetative cells to provide the cells in active form for use.” Answer 5-6.
Appellants contend there would have been no motivation to combine
Uo and Hino because “one of ordinary skill would expect Uo’s gelation
solution [containing methanol] to be toxic to Hino’s vegetative cells and thus
would not have a reasonable expectation of success with the combination.”
Br. 4. Appellants rely on a “technical understanding of the antimicrobial
activity of alcohols” and on Uo’s and Hino’s teachings for support. Br. 5
(citing DISINFECTION, STERILIZATION, AND PRESERVATION, Ch. 12
(“Alcohols”) (Seymour Block ed.) (5th ed. 2001)).
1 Claim 24 is dependent upon claim 17; claim 17 is dependent upon claim
15.
5
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