Interference No. 103,854
Mindick, 549 F.2d at 782, 17 USPQ at 22; In re Pearson, 494 F.2d at 1405,
181 USPQ at 646.
Claim 7
Claim 7 is directed to multimers of claim 1 wherein said multimers are “encapsulated
in a liposome.” Wallach argues that because the claim “reads on a plurality of TBP
monomers expressed on the surface of a liposome,” it is neither anticipated nor rendered
obvious by Smith claim 39 or Wallach claim 1, corresponding to the count. Brief, p. 37.
Wallach acknowledges the examiner’s position in the statement under 37 C.F.R. § 1.609(b),
attached to the Interference Initial Memorandum, that it would have been obvious to one of
ordinary skill in the art to formulate a TNF-R multimer in any pharmaceutical delivery vehicle
known in the art, and that such delivery vehicles included liposomes as evinced by the
Utsumi publication. However, Wallach urges that Utsumi discloses the use of liposomes to
deliver TNF, but that there was no disclosure as to their use with TBPs. Brief, p. 38.
Wallach further argues that there is no suggestion in Utsumi of whether TBP
multimers would show affinity for liposomes. Brief, p. 39. Wallach contends that “Utsumi
does not provide a reasonable expectation of success and a prima facie case of obviousness
has not been made out for the liposomes vis-à-vis the multimers of claim 1.” Id., sentence
bridging pp. 39-40. We find Wallach’s position untenable.
In the Decision on Motion (Paper No. 57), the APJ denied the preliminary motion with
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