Appeal 2007-4217
Application 10/345,394
composition processed via a mixing-blender would be ‘flowable.’” (Answer
7). Appellants respond that Yamanaka “teaches only mechanical shearing of
the non-flowable gel. It does not contemplate the addition of water or other
viscosity modifiers as to render the gel flowable as claimed.” (Reply Br. 4.)
However, the instant application’s Example 2 shows that addition of
water (or anything else) is not required to make a microbial cellulose gel
flowable. The example states that an amorphous gel was made by (1)
combining 500 g of microbial cellulose with 2500 ml of water and
processing in a blender, and (2) draining and pressing the mixture “until the
weight of the gel again reached 500 g” (Specification ¶0042). Thus, the
amorphous gel had the same weight – and therefore the same water content –
as the original microbial cellulose. The evidence of record does not support
Appellants’ assertion that a microbial cellulose is not flowable unless a
viscosity modifier is added.
Thus, Appellants’ gel composition comprises 4-7% of a microbial
cellulose, and Yamanaka discloses a gel composition comprising 5% of a
microbial cellulose, and both Appellants and Yamanaka use the same
microbe, Acetobacter xylinum, to produce the cellulose. Thus, the dressings
appear to be the same, and the burden is properly shifted to Appellants to
demonstrate that they are different. Moreover, arguments of counsel cannot
take the place of evidence in the record. See In re Scarbrough, 500 F.2d
560, 566, 182 USPQ 298, 302 (CCPA 1974).
Claims 1-27 stand rejected under 35 U.S.C. § 103(a) as being obvious
over the combination of Yamanaka, Rhodes, and Hobson.
As Appellants do not argue the claims separately, claims 2-27 stand or
fall with claim 1. As Appellants merely argue that the teachings of Rhodes
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