Appeal No. 95-4700
Application 07/837,668
pending and are allowed. Claim 31 is no longer rejected but is objected to as being
dependent upon a rejected base claim but would be allowable if rewritten in independent
form. Claim 1 reads as follows:
1. A recombinant gene comprising a nucleotide sequence which encodes a
flagellin fusion protein, which protein comprises a flagellin sequence containing a first
epitope of a flagellin structural gene with at least one epitope of a heterologous organism
inserted within the flagellin sequence, wherein the flagellin protein is capable of binding to
an antiflagellin antibody.
The references relied upon by the examiner are:2
Asaka et a. (Asaka) 4,886,748 Dec. 12, 1989
Wei et al. (Wei), “Covalent Structure of Three Phase-1 Flagellar Filament Proteins of
Salmonella,” Journal of Molecular Biology, Vol. 186, pp. 791-803 (1985).
Eichinger et al. (Eichinger), “Circumsporozoite Protein of Plasmodium berghei :Gene
Cloning and Identification of the Immunodominant Epitopes,” Molecular and Cellular
Biology, Vol. 6, No. 11, pp. 3965-72 (Nov. 1986).
Macnab, “Escherichia Coli and Salmonella Typhimurium: Cellular and Molecular Biology”,
American Society for Microbiology, pp. 70-83 (1987).
Dougan et al. (Dougan), “Live oral Salmonella vaccines: potential use of attenuated strains
as carriers of heterologous antigens to the immune system,” Parasite Immunology, Vol. 9,
pp. 151-160 (1987).
Kuwajima, “Flagellin Domain That Affects H Antigenicity of Escherichia Coli K-12,”
Journal of Bacteriology,” Vol. 170, No. 1, pp. 485-88 (1988).
In addition, the examiner cited references to Tizard and Mandelstam at page 5 of the supplemental2
examiner's answer. However, the examiner did not include these references in a statement of any of the
pending rejections. Nor did the examiner make a new ground of rejection in the supplemental examiner's
answer which relied upon these references. Accordingly, we have not considered the Tizard and
Mandelstam references. See In re Hoch, 428 F.2d 1341, 1342 n. 3, 166 USPQ 406, 407 n. 3 (CCPA
1970).
2
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