Appeal 2007-0539
Application 10/264,026
such as animal proteins, animal lipids and other animal compounds” (id.).
That is beside the point. Appellants have not provided an expert analysis of
the peaks on these chromatographs, nor have Appellants identified anything
in the coral fraction that is not also in the algal fraction. Thus, Appellants
have not established that there are any “animal impurities” in the coral
fraction. In any case, even if animal impurities were apparent in the coral
fraction, it would have no bearing on whether the prior art pseudopterosin
compositions contain animal impurities. Again, this evidence does not
persuade us that the prior art compositions do not anticipate the claimed
compositions.
In this regard, Appellants also argue that “the claimed extracts . . . are
not the same as an ‘HPLC extract’” and “[t]he claimed extracts, algal
extracts comprise other components/ingredients/impurities from the algae
. . . . The algal extracts may be subjected to HPLC methodologies to provide
a highly pure solution of a given compound, i.e. an HPLC extract . . . [but]
the resulting so called ‘HPLC extract’ is not the same as the original algal or
coral extract” (Br. 9). This argument is not persuasive. As discussed above,
most of the claims merely require compositions, free of animal impurities,
comprising at least one pseudopterosin obtainable from Symbiodinium spp.
Even those claims directed to an “extract” (claims 33, 34, and 48) fail to
distinguish between an “‘HPLC extract’ . . . [and] the original algal or coral
extract” (id.).
Finally, Appellants argue that “[o]ne cannot possibly hold that ALL
the peaks in the coral HPLC are not animal impurities” (Br. 7), and “the only
way to ensure a pseudopterosin composition that is completely free of
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