Appeal 2007-2371
Application 10/426,654
structure” (id. at 12, ¶ [0056]). When combining the lecithin and the
polymer, “[t]he two components may be mixed together using conventional
methods, such as, for example, a Waring Blender, emulsification equipment
or a microfluidizer” (id. at 10, ¶ [0048]).
Thus, the Specification does not disclose that forming a matrix
structure requires hydrating the lecithin and polymer together, or performing
a particular series of steps. Rather, when claim 1 is viewed in light of the
Specification, it is evident that a combination of lecithin and acrylic polymer
mixed by conventional methods will result in a matrix because of the affinity
between the two ingredients. Because Anselem mixed the two ingredients
together by stirring (Anselem, col. 17, l. 66 to col. 18, l. 1), it is reasonable
to conclude that Anselem “combined [them] together to form a matrix
structure” as required by claim 1.
Appellant argues that a theoretical comparison of Anselem’s adjuvant
to the claimed adjuvant demonstrates that the two products are different (Br.
7-9; see also Reply Br. 3). Specifically, Appellant relies on Figures 1
through 3 of Exhibit A (Br., Evidence Appendix) to illustrate the argument
that, because the claimed adjuvant is made by hydrating the lecithin and
acrylic polymer together, the lecithin’s hydrophobic tails are exposed and
bound to the hydrophobic portion of the acrylic polymer (id. at 8).
Appellant argues that, “[i]n contrast, the hydrophobic non-polar fatty acid
tails are not exposed in Anselem and, therefore, the phospholipids do not
bind to the acrylic polymer and thus do not form a matrix or net-like
structure comprised of lecithin and acrylic polymer” (id.).
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