Appeal No. 95-4700
Application 07/837,668
structural gene” as required by claim 1 on appeal. The fusion protein encoded by such a
recombinant gene would expectedly be “capable of binding to an antiflagellin antibody,” as
also required by claim 1 on appeal. On this record, it is incumbent upon appellants to
establish that a full length flagellin gene into which has been inserted a second nucleotide
sequence encoding an antigenic peptide, such as HBV surface antigen, as described by
Asaka does not fall within the scope of claim 1 on appeal. Appellants have not done so.
As explained above, our determination that Asaka anticipates claim 1 on appeal is
dispositive of all of the prior art rejections pending in this appeal. Consequently, all of the
prior art rejections are affirmed.
2. Rejection under 35 U.S.C. § 112, second paragraph.
This rejection is set forth in the paragraph bridging pages 12-13 of the Supple-
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mental Examiner's Answer. The examiner indicates that the claims are not clear as to the
metes and bounds of the phase “a first epitope of a flagellin structural gene.” How-ever,
the examiner has not established that for a given flagellin nucleotide sequence one skilled
in the art would not be able to readily discern whether that nucleotide sequence encodes a
protein which is antigen, i.e., contains an epitope. Without a more
The page numbers which appear in the upper right-hand corner of this paper beginning on page 6 are5
incorrect.
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