Appeal No. 1997-3542
Application No. 08/192,507
In the present case, appellants provide for a method of killing IgM producing
hybridoma or B cells by contacting the cells with a cytocidally effective amount of the
immunotoxins. Specification pages 4, 11 and 12. The appellants recognize a problem in
the hybridoma art, wherein, in mixed cultures of IgM and IgG secreting hybridoma cells,
IgM secreting cells often over grow the IgG secreting cells. This problem calls for the
elimination of IgM producing hybridoma cells after cell fusion. Specification, page 2.
Appellants’ anti-IgM antibody-cytotoxin conjugate and method provide a solution to this
problem. The examiner has provided no evidence as to why one of ordinary skill in the art
would link the antibodies of Julius or Kung to a cytotoxic moiety as disclosed by Lambert,
to destroy B-cells. None of the cited references recognize or provide a solution to the
problem addressed by appellants’ conjugate.
After evidence or arguments are submitted by the appellants in response to
rejection based on obviousness, patentability is determined on the totality of the record,
by a preponderance of evidence with due consideration to persuasiveness of the
argument. We have carefully studied the arguments and evidence of record. On balance,
we believe that the totality of the evidence presented by the examiner and appellants
weighs in favor of finding the claimed invention nonobvious in view of the cited references.
The rejection of claims 1, 2, 6, 7, 11, 12, 16 and 17 under 35 U.S.C.
§ 103 for obviousness is reversed.
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