Ex Parte Quinn

Board of Patent Appeals and Interferences

Oct 5, 2009

11048335 (B.P.A.I. Oct. 5, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte HUBERT QUINN
____________________

Appeal 2009-011583
Application 11/048,335
U.S. Patent Publication 2006/0169640
Technology Center 1700
____________________

Decided: October 5, 2009
____________________

Before: FRED E. McKELVEY, Senior Administrative Patent Judge,
and RICHARD E. SCHAFER and SALLY GARDNER LANE,
Administrative Patent Judges.

McKELVEY, Senior Administrative Patent Judge.

DECISION ON APPEAL
A. Statement of the case 1
Cohesive Technologies, Inc., and its parent entity, Thermo Fisher 2
Scientific, Inc. ("Cohesive"), the real parties in interest, seek review under 3
35 U.S.C. § 134(a) of a final rejection (mailed 18 July 2008). 4
The application was filed on 1 February 2005. 5
Claims 1, 3, 5-7 and 9-10 are on appeal. 6
Five prior art references were cited by the Examiner. Resolution of 7
the appeal, however, requires us to consider only one of the five prior art 8
references. 9

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Wheat Patent 6,790,361 14 Sep. 2004
1
The reader should know that "et al" is not used in this opinion. 2
Wheat is prior art under 35 U.S.C. § 102(a). Cohesive does not 3
contest the prior art status of Wheat. 4
We have jurisdiction under 35 U.S.C. § 134(a). 5
B. Findings of fact 6
The following findings of fact are supported by at least a 7
preponderance of the evidence. 8
References to the specification are to U.S. Patent Publication 9
2006/0169640. 10
Additional findings as necessary may appear in the Discussion portion 11
of the opinion. 12
The invention 13
The Cohesive invention relates to a high throughput purification and 14
recovery system for large and small molecules, particularly suitable for high 15
performance liquid chromatography (HPLC). Specification, ¶ 0001. 16
More specifically, one embodiment of the Cohesive invention relates 17
to a method of chromatographically analyzing/purifying a sample dissolved 18
in a dipolar aprotic solvent or mixture of solvents having a polarity index 19
greater than about 4.0, by 20
(1) providing a sample wherein said sample comprises one or a 21
plurality of solutes, 22
(2) dissolving said sample in said solvent, 23

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(3) providing a chromatography column and loading said 1
sample on said column with a loading solvent, 2
(4) establishing a flow of eluent of increasing strength through 3
said chromatography column and 4
(5) introducing said effluent exiting said chromatography 5
column to a detector. 6
Specification, ¶ 0004. 7
In the context of the Cohesive invention, a mixture containing 8
a number of different organic molecules (compounds) may be dissolved in a 9
given solvent—which may be different from the loading solvent. Cohesive 10
refers to the mixture of (1) compounds dissolved in the solvent and (2) the 11
loading solvent as a "solute mixture". Specification, ¶ 0019. 12
A loading solvent is defined as a dipolar aprotic solvent having a 13
polarity index greater than about 4.0. Specification, ¶ 0019. 14
The loading solvent can be dipolar aprotic solvents, including 15
mixtures of solvents, that provide a polarity index of between about 16
4.0-10.0. Specification, ¶ 0019; see Table 1 for a list of loading solvents and 17
their polarity indexes. 18
A solution including dimethyl sulfoxide (DMSO) and solute mixture 19
is said to facilitate the transfer of the mixture of compounds to a 20
chromatography column. DMSO is preferably used to dissolve the mixture 21
and, in combination with the loading solvent, load the mixture on the 22
chromatography column by providing a medium that will carry, i.e., dissolve 23
all of the compounds in the mixture. While DMSO is one solvent suitable 24
for dissolving a diverse array of chemical compounds, DMSO is such a 25

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solvent that it may not be a suitable eluting solvent. A solvent as aggressive 1
as DMSO may overwhelm the chromatographic reactivity between at least 2
some of the solute components and the stationary phase. Rather than 3
separating the various compounds in the solute mixture, DMSO may simply 4
wash the solute mixture through the chromatography column with little or no 5
separation of the components of the solute mixture. Accordingly, once 6
loaded onto the column with a solvent such as DMSO, it is preferable to 7
remove/deplete the DMSO from the column prior to elution. Specification, 8
¶ 0021. 9
In the broad context of the Cohesive invention, one may 10
dissolve a sample in a loading solvent, load the sample onto the column, 11
remove the loading solvent, and identify what is characterized herein as a 12
generic eluent system to elute the plurality of molecules in the sample. This 13
may be accomplished by selecting an eluent system for the plurality of 14
molecules and detecting whether or not such eluent system causes any of the 15
molecules to precipitate in the column, and in the event that the selected 16
eluent system results in precipitation, selecting another eluent system and 17
repeating until a generic eluent system which avoids precipitation is 18
identified. Specification, ¶ 0028. 19
A portion of Cohesive Fig. 1 is reproduced below. 20

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1
Fig. 1 depicts part of a schematic view of a liquid 2
chromatography system consistent with the Cohesive invention. 3
4
With reference to the exemplary system illustrated in Cohesive Fig. 1, 5
the loading pump 14 may supply a suitable loading solvent, to load a sample 6
dissolved in a suitable solvent such as DMSO disposed in the autosampler 7
12. The dissolved sample may then be loaded on the separation column 16, 8
via the first multi-port valve 18, by the loading pump 14. The eluting pump 9
20 may provide a flow of eluent through the separation column 16, wherein 10
the eluent is of a predetermined strength. Effluent from the separation 11

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column 16 may be directed to the first detector 22. The detector 22 may 1
identify the compounds of each fraction as they are eluted. From the first 2
detector 22, the effluent may pass through a second multi-port valve 26 and 3
a second purification column [not reproduced]. Specification, ¶ 0029. 4
Claims on appeal 5
Claim 1, which we reproduce from the Claim Appendix of the Appeal 6
Brief, reads [bracketed matter, drawing numbers, italics and some 7
indentation added]: 8
A method of chromatographically analyzing a sample 9
comprising: 10
[1] providing [from 14] a dipolar organic aprotic loading 11
solvent or mixture of solvents having a polarity index of 4.0 12
to 10.0; 13
[2] providing [from 12] a sample wherein said sample 14
comprises one or a plurality of molecules; 15
[3] dissolving said sample in said loading solvent; 16
[4] providing a chromatography column [16] and 17
loading said sample on said column with said loading solvent, 18
wherein loading said sample on said column is performed 19
without diluting said loading solvent; 20
[5] removing the loading solvent; 21
[6] establishing a flow of eluent of increasing strength 22
through said chromatography column subsequent to said 23
removal of said loading solvent; and 24

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[7] introducing effluent exiting said chromatography 1
column to a detector [22]. 2
The principal issues on appeal center around the language which is 3
italicized. 4
Examiner's rejections 5
The Examiner rejected all the claims on appeal for failure to comply 6
with the written description requirement of the first paragraph of 35 U.S.C. 7
§ 112. 8
The Examiner also rejected all the claims on appeal as being 9
unpatentable under 35 U.S.C. § 103(a) over the prior art—including Wheat. 10
Wheat 11
Chromatography is a method of fractionating a mixture to separate 12
components of the mixture. In liquid chromatography, a sample containing 13
a number of components to be separated is injected into a fluid stream, and 14
directed through a chromatographic column. The column is designed so that 15
it separates the mixture, by differential retention on the column, into its 16
component species. The different species then emerge from the column as 17
distinct bands, separated in time. Col. 1:18-25. 18
A typical high performance liquid chromatography system (HPLC 19
system) is comprised of (1) a pump for delivering fluids (the "mobile 20
phase") at a controlled flow rate and composition, (2) an injector to 21
introduce a sample solution into the flowing mobile phase, (3) a tubular 22
column encasement containing a packing material or sorbent (the "stationary 23
phase"), and (4) a detector to register the presence and amount of the sample 24
components in the mobile phase. When the mobile phase is passed through 25

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the stationary phase, each component of the sample will emerge from the 1
column at a different time because different components in the sample will 2
have different affinities for the packing material. The presence of a 3
particular component in the mobile phase exiting the column can be detected 4
by measuring changes in physical or chemical properties of the eluent. By 5
plotting the detector's signal over time, response "peaks" corresponding to 6
the presence of each of the components of the sample can be observed and 7
recorded. Col. 1:26-44. 8
Wheat refers to one form of HPLC as "Preparative HPLC." Col. 1:45. 9
According to Wheat, in "Preparative" chromatography, it is desirable 10
to maximize the quantity of sample to be separated per volume of packing 11
material in the column. Smaller volume columns contain less packing 12
material, which often will have a significant impact on the cost of the 13
column. However, the resolution between response peaks in a 14
chromatographic analysis or "run" depends, in part, on the loading capacity 15
of the column. Chromatography results are limited by the loading capacity 16
of the column, defined as a threshold for the maximum volume and/or mass 17
of sample that may be loaded onto the column without compromising 18
results. Col. 2:12-22. 19
The loading capacity for a column can be exceeded in two ways: 20
volume overload; and mass overload. Volume overload can be defined as 21
the volume of injected sample solution where loss of resolution occurs. 22
Mass overload can be defined as the mass of solute in the sample solution 23
above which loss of resolution occurs. Col. 2:23-29. 24

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Wheat tells us that it is desirable to enhance the loading capacity of a 1
column, thereby allowing for the purification and isolation of a larger 2
quantity of a purified sample per chromatographic run. An increased 3
loading capacity for a chromatography column is said to imply less run time 4
required, and lower cost associated with the isolation of a fixed quantity of 5
sample. Col. 2:51-56. 6
The Wheat invention relates to liquid chromatography instrumentation 7
and solvent delivery systems, and more particularly to a method and 8
apparatus for increasing the loading capacity of a chromatography column 9
through dilution of a mobile phase at the head of the column. Col. 2:60-64. 10
Wheat Fig. 1 and Fig. 2 are reproduced below. 11
12
Wheat Fig. 1 depicts a traditional instrument configuration for a solvent 13
delivery system in a Preparative chromatography system. 14
15

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1
Wheat Fig. 2 depicts an instrument configuration for 2
a solvent delivery system in a Preparative chromatography 3
system according to the Wheat invention. 4
5
In a traditional Preparative HPLC system, illustrated in Wheat Fig. 1, 6
a single gradient pump 11 delivers a variable strength mobile phase of 7
controlled composition to the system. The sample solution to be separated is 8
inserted through an injector loop 12 into the stream of solvent, and delivered 9
to the chromatography column 13 as a slug of sample solution sandwiched 10
in the stream of mobile phase. The mobile phase is forced through the 11
column 13 and passed to a detector 14 for evaluation. Individual sample 12
components are retained to varying degrees on the sorbent bed, and elute 13
in turn from the column over the course of the chromatographic run. 14
Col. 7:57-67. 15
According to Wheat, there are inherent limitations to the traditional 16
Preparative HPLC system illustrated in Wheat Fig. 1. Wheat reveals that it 17
is desirable to maximize the amount of compound that may be purified and 18

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isolated in a chromatography run. An initial approach would be to load an 1
increased volume of a sample solution, comprised of a sample dissolved in a 2
suitable solvent. However, it has been found that a large volume of sample 3
solution, when injected into the system, degrades chromatography and 4
creates peak distortions due to volume overload. Therefore, Wheat teaches 5
that it would be desirable to load the largest amount of compound in a small 6
volume of solution to limit the total injection volume—which results in a 7
high sample concentration. High sample concentrations require a strong 8
solvent. However, the strong solvent is said to degrade the separation and 9
creates peak distortions due to mass overload. Therefore, solubility of a 10
sample in the mobile phase of the system illustrated in Wheat Fig. 1 is said 11
to be limited. These conflicting principles must be resolved in order to 12
provide optimal separation of a large amount of compound in a 13
chromatography system, without excessive mass or excessive volume 14
overload. Col. 8:17-37. 15
The Wheat invention is said to overcome the prior art limitations by 16
increasing the apparent loading capacity of a column to maximize the 17
amount of sample that can be separated per run cycle. Thus, the Wheat 18
invention, as illustrated in Wheat Fig. 2, provides a chromatographic column 19
25 for separating a sample, a loading pump 22 for providing a strong mobile 20
phase, such as, e.g., acetonitrile, to the system and a separate gradient pump 21
21 for providing a variable strength, weak mobile phase flow to the system 22
and a fitting 24 in communication with the column 25 for combining the 23
outputs of the loading pump 22 and the gradient pump 21. The loading 24
pump 22 delivers a stream of a strong mobile phase through the injector 23. 25

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A sample is first dissolved in a solvent and then injected through the injector 1
23 into the strong mobile phase stream to form a sample-containing strong 2
mobile phase. A high concentration of sample in a small volume of solution 3
is permitted. The sample is carried to the fitting 24 as a slug sandwiched in 4
the strong mobile phase stream. At the fitting 24, the sample-containing 5
strong mobile phase, comprised of the sample solution and high strength 6
mobile phase, is diluted with a weak mobile phase flow from the gradient 7
pump 21 to form a sample-containing weak mobile phase. The sample-8
containing weak mobile phase is then passed through the fitting 24 9
to the column 25. The diluted, sample-containing weak mobile phase, 10
comprised of the sample solution and the combination of the mobile phases 11
from the gradient pump and the loading pump, is passed through the column 12
25 and subsequently conveyed to detectors 26 for evaluation and collection 13
of the purified compound. Col. 8:38-67. 14
The Wheat invention is said to provide an enhanced chromatography 15
method designed to increase the loading capacity of a chromatography 16
column and enhance the separation of a sample in a Preparative HPLC 17
system. In one embodiment of the Wheat invention, an at-column dilution 18
scheme is implemented into a chromatography system to dilute a strong 19
mobile phase containing the sample prior to introduction of the sample onto 20
the chromatographic column. The dilution is said to have the effect of 21
increasing the loading capacity of a column, thereby allowing a greater 22
quantity of sample to be separated during a chromatographic run. 23
Alternatively, a shorter column may be used to separate a fixed amount of 24

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sample, thereby reducing the run time required to separate the fixed amount 1
of sample. Col. 4:54-67. 2
A strong mobile phase dissolves the sample. The strong mobile phase 3
comprises a strong organic solvent, such as, e.g., 100% acetonitrile, in which 4
the sample has good solubility. A strong mobile is capable of dissolving a 5
larger quantity of a sample than a weak mobile phase. As used herein, the 6
term "sample-containing strong mobile phase" consists of the strong mobile 7
phase and the dissolved sample carried in the strong mobile phase. Col. 6:61 8
to col. 7:2. 9
Although a strong mobile phase is suitable for dissolving a large 10
quantity of a sample, the strength of this mobile phase causes the sample 11
components to be poorly retained by the sorbent bed, leading to peak 12
distortion and degraded chromatographic separation. To regulate the 13
strength of the solvent prior to passing the sample-containing strong mobile 14
phase through the column, the sample-containing strong mobile phase is 15
diluted by adding a weak mobile phase to the sample-containing strong 16
mobile phase to form a sample-containing weak mobile phase. The 17
"sample-containing weak mobile phase" includes the strong mobile phase, 18
the sample and the weak mobile phase (i.e., the diluent). The sample-19
containing weak mobile phase is weaker in elution strength than the strong 20
mobile phase, in that the sample has lower affinity for the mobile phase and 21
therefore a higher affinity for the stationary phase. The diluted sample-22
containing mobile phase is suitable for carrying the sample onto the 23
stationary phase without degrading the chromatographic results. 24
Col. 7:3-20. 25

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C. Discussion 1
Examiner's § 103 rejection 2
Cohesive has the burden on appeal of showing that the Examiner 3
erred in rejecting the claims. We address the arguments made in the Appeal 4
Brief to see if Cohesive has sustained its burden. 5
(1) The Cohesive "teaching away" argument 6
According to Cohesive, Wheat "teaches away" from the claimed 7
invention. Why? Because the invention of claim 1 requires that "wherein 8
loading said sample on said column is performed without diluting said 9
loading solvent" and Wheat is said to involve diluting the loading solvent. 10
Appeal Brief, page 6. 11
Cohesive explains that "[t]he central objective of Wheat is increasing 12
the loading capacity of a chromatography column . . . [and] this objective is 13
accomplished by diluting the loading solvent . . . prior to introducing the 14
sample-containing loading solvent onto the chromatographic column." 15
Appeal Brief, page 6. 16
Whether a reference teaches away from a claimed invention is a 17
question of fact. In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005); 18
In re Peterson, 315 F.3d 1325, 1331-32 (Fed. Cir. 2003). 19
The Examiner found that Wheat does not teach away from the 20
claimed invention. Examiner's Answer, page 6. 21
The issue therefore becomes whether the Examiner's finding is 22
supported by the evidence. 23
Our analysis of Wheat reveals that Wheat was addressing a problem 24
of increasing loading capacity of a chromatography column. Col. 2:60-64. 25

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To solve the identified problem, Wheat "discovered" that if the loading 1
solvent is diluted, then the loading capacity of the chromatography column 2
is said to be increased. Col. 2:65 through col. 3:6. Cohesive, of course, 3
limits it claimed invention to a process where the loading solvent is not 4
diluted. 5
A reference is not limited to its preferred embodiment. In re Burckel, 6
592 F.2d 1175, 1179 (CCPA 1979). Wheat discloses a "prior art" process in 7
which the loading solvent is not described as being diluted. See Fig. 1 and 8
associated discussion (col. 7:57-67). What Wheat as a whole tells one 9
skilled in the art is that if you have a chromatography column capacity 10
problem, then you would consider Wheat's "dilution" idea. On the other 11
hand, if you do not have a chromatography column capacity problem, then 12
you do not need to use Wheat's "dilution" idea. There is nothing in claim 1 13
on appeal (or for that matter the specification) which indicates that the 14
chromatography column called for by claim 1 has a capacity problem. 15
Likewise, there is nothing in the record to suggest that Cohesive's process is 16
"inoperable" or non-enabled. We will assume that the chromatography 17
column capacity of the chromatography columns considered and described 18
by Cohesive are satisfactory. 19
The Examiner's finding that Wheat does not teach away is supported 20
by the evidence. 21
(2) The Cohesive "pure DMSO" argument 22
(a) 23
Cohesive maintains that the Examiner has incorrectly analyzed 24
Example 1 of Wheat. Appeal Brief, page 7. Cohesive agrees Wheat 25

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Example 1 describes a "standard chromatographic method" and is provided 1
by Wheat to illustrate the problems arising from use of a strong mobile 2
phase loading solvent. Id. According to Cohesive, Wheat does not describe 3
the use of "pure DMSO as a loading solvent." Id. 4
We find Cohesive's argument curious. One the one hand, with respect 5
to the Examiner's § 112 written description rejection, Cohesive argues that 6
there is nothing in its specification suggesting that the loading solvent is 7
diluted. On the other hand, Cohesive asks the Examiner and this Board to 8
read into Wheat a notion that the DMSO of Example 1 is "not pure"—an 9
argument we take to mean "not diluted." 10
There is nothing in Wheat which suggests that the DMSO is diluted. 11
Moreover, we note that the DMSO is the solvent in which the "molecules" 12
(to use Cohesive's claim 1 language) are placed prior to being loaded with 13
the loading solvent which is described as being an acetonitrile/water 14
mixture. Col. 11:19-24. 15
(b) 16
Cohesive also mentions that Example 1 fails to disclose "removing the 17
loading solvent" or "establishing a flow of eluent of increasing strength 18
through said chromatography column subsequent to removal of said loading 19
solvent." Appeal Brief, page 7. The argument is limited to Wheat 20
Example 1. To the extent that the argument is a back door way of attacking 21
Wheat as a whole, the Examiner relied on two other references to overcome 22
any difference in "removing" or "increasing strength". Final Rejection, 23
page 2; Examiner's Answer, page 3. 24

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The Appeal Brief does not contest the Examiner's reliance on the 1
other prior art and does not argue that the Examiner erred in combining 2
references with Wheat. Accordingly, we have no occasion to consider the 3
appropriateness of the combination of the references relied upon by the 4
Examiner. Cohesive did not file a Reply Brief. Since no argument 5
contesting the combination of references was presented in the Appeal Brief, 6
and no Reply Brief was filed, Cohesive has waived any argument to the 7
effect that the Examiner improperly combined references. Cohesive has 8
failed to establish error in the Examiner’s reliance on the additional 9
references to establish the obviousness of "removing the loading solvent" or 10
"establishing a flow of eluent of increasing strength through said 11
chromatography column subsequent to removal of said loading solvent." 12
(3) Cohesive's "mixture of solvents" argument 13
The Examiner found that claim 1 reads on the use of a mixture of 14
strong and weak loading solvents and that the mixture "would be the recited 15
undiluted loading solvent." Final Rejection, page 5. 16
Cohesive maintains that the Examiner is not correct because the 17
claims require that the loading solvent have a polarity index of 4.0 to 10.0. 18
Appeal Brief, page 7. 19
The Examiner's finding is based on the claim 1 language "loading 20
solvent or mixture of solvents" and Table 1 (¶ 0020) of the Cohesive 21
specification listing the polarity index for various solvents. The polarity 22
index values vary from 4.0 to 7.2, with water being listed as 10.2 (outside 23
the 4.0 to 10.0 range called for by the claims). We understand the Examiner 24
to reason that if a mixture of (1) DMSO—polarity index of 7.2—and (2) 25

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methanol—polarity index of 5.1—is used, then the DMSO can be viewed as 1
having been diluted with methanol. 2
We agree with Cohesive on this point. It is probably the case that the 3
polarity index for a DMSO/methanol mixture is somewhere between 7.2 and 4
5.1, and that the DMSO has been diluted with methanol. However, what we 5
think Cohesive is claiming is that, when a loading solvent mixture is used, it 6
is the mixture which is not diluted. 7
To the extent that the Examiner erred, any error is harmless. As we 8
noted earlier, Wheat does not teach away from embodiments where the 9
loading solvent is not diluted. 10
(4) Decision on § 103 rejections 11
Apart from claim 1, Cohesive does not single out any other claim for 12
separate patentability consideration. We have elected to decide the appeal 13
on the basis of the only claim argued—Claim 1. 37 C.F.R. § 41.37(c)(1)(vii) 14
(2008). Accordingly, all claims fall with claim 1. 15
Examiner’s § 112 written description rejection 16
During prosecution, there came a time when the Examiner rejected an 17
earlier version of claim 1 over the prior art—including Wheat. 18
Cohesive amended claim 1 to include the following limitation: 19
"wherein loading said sample on said column is performed without diluting 20
said loading solvent." Amendment filed 23 June 2008. 21
The amendment was designed to get around Wheat. Amendment, 22
page 4. 23

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Upon review of the Amendment to claim 1, the Examiner found that 1
the limitation was not described in the application as filed. Hence, the 2
Examiner made a lack of written description rejection. 3
The Examiner states that he could find not support for the limitation. 4
Examiner's Answer, page 3; Final Rejection, page 2. The Examiner's 5
finding provides a prima facie case of a failure to comply with the written 6
description requirement. Hyatt v. Dudas, 492 F.3d 1365 (Fed. Cir. 2007). 7
Cohesive says, however, that nowhere in the specification is there any 8
explicit description of using a diluted loading solvent. Rather, pointing to 9
page 12:16-20 (of the Specification as filed)—now ¶ 0029 of the published 10
patent application—Cohesive says that what is disclosed is the use of a 11
suitable loading solvent. Appeal Brief, page 5. 12
As noted in our analysis of the prior art rejection and Cohesive's 13
argument related to Wheat Example 1, Cohesive wants both ways. 14
According to Cohesive, since Wheat did not say the DMSO was not diluted, 15
it could not be "pure." On the other hand, with respect to its own loading 16
solvent, the fact that the specification does not say the loading solvent is 17
diluted means it cannot be diluted. 18
In view of our affirmance of the § 103 rejection, we do not find it 19
necessary to reach or consider the § 112 written description issue. 20
In the event of further prosecution (RCE or continuation), an issue 21
Cohesive and the Examiner may wish to consider is what Cohesive means 22
by "suitable loading solvent"? By the time the Cohesive application was 23
filed, Wheat reveals that both diluted and non-diluted loading solvents were 24
known. Is a suitable loading solvent a diluted solvent per Wheat? We leave 25

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resolution of these matters for consideration in any further prosecution 1
Cohesive may elect to undertake. 2
Other arguments 3
We have considered Cohesives’s remaining arguments and find none 4
that warrant reversal of the Examiner’s rejections. Cf. Hartman v. 5
Nicholson, 483 F.3d 1311, 1315 (Fed. Cir. 2007). 6
D. Decision 7
Cohesive has not sustained its burden on appeal of showing that the 8
Examiner erred in rejecting the claims on appeal as being unpatentable under 9
§ 103 over the prior art. 10
Upon consideration of the appeal, and for the reasons given herein, 11
it is 12
ORDERED that the decision of the Examiner rejecting 13
claims 1, 3, 5-7 and 9-10 under 35 U.S.C. § 103(a) over the prior art is 14
affirmed. 15
FURTHER ORDERED that we do not reach the § 112 written 16
description rejection inasmuch as it is moot in view of our affirmance of the 17
§ 103 rejection. 18
FURTHER ORDERED that no time period for taking any 19
subsequent action in connection with this appeal may be extended under 20
37 C.F.R. § 1.136(a)(1)(iv) (2008). 21

AFFIRMED

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