Recent Prophetic Example cases from the PTAB
Patently-O
JULY 2, 2021
Ex parte Callewaert , APPEAL 2019-005598 (Patent Tr. & App. Bd. Feb. 25, 2021). Following an obviousness rejection, applicant relied upon an example in the specification to help prove an unexpected result (that the living cell would create certain “unnatural glycan structures”). The PTAB rejected the argument — finding that the example was written in the present tense and therefore assumed to be prophetic and therefore “does not provide the factual evidence needed
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