Appeal 2006-3259
Application 09/785,188
advantages of immobilizing cells directly rather than their spores would
have motivated the skilled artisan to make the substitution. This would have
been true, at least in certain circumstances, even believing some activity
would be lost. See Answer 6-7.
Appellants strenuously argue that there is no suggestion in the prior
art that macropores can be formed without methanol present. We disagree.
Uo suggests that PEG, water and acid are responsible for their formation, not
methanol. In our view, that suggestion is sufficient to support the
Examiner’s prima facie case of obviousness, a case Appellants have not
rebutted with evidence to the contrary. And in that regard, we note
Appellants remove their methanol before adding a dispersant to form the
macropores.
Claim 28
Claim 28, like claim 26, has been rejected under §103(a) in view of
Uo and Hino. Claim 28 differs from claim 26 in that it is to a gel rather than
a method and the immobilized cells are bacterial cells. In addition to his
findings with respect to claim 26, the Examiner found that “bacterial cells”
in claim 28 are not limited to “vegetative cells” and thus include bacterial
spores. Answer 13. Thus, according to the Examiner, the skilled artisan
would have been motivated to substitute Hino’s bacterial cells (in the form
of spores) into Uo’s method and gel when “a bacterial cell is desired.” Id. at
14. We agree with these findings.
Appellants respond that there is no teaching of bacterial spores in the
references, and Uo “teaches away from exposure of organisms other than
robust yeast spores.” Br. 12. For the reasons given above, we disagree with
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