Appeal No. 1998-1987
Application No. 07/915,783
Finally, Appellant argues that neither Kilejian nor Epstein “showed that
they had extracted and/or recovered protective antigens.” Again, claim 68 does
not require that either the plasmodial antigen in the claimed composition or the
composition itself generate an immune response that is protective against later
challenge. All the claim requires is that the composition induce “immunological
reactivity.” This property would be reasonably expected from the prior art
compositions, because the plasmodial antigens that were immunoprecipitated
were recognized and bound by antibodies raised to intact merozoites. Therefore,
the plasmodial antigens display epitopes shared by intact merozoites and would
reasonably be expected to generate the same antibody response, i.e., they
would be expected to induce the same immunological reactivity.
Appellant presents a similar argument with respect to the rejection based
on Kilejian, in which he argues that “[i]t should be borne in mind that the key to
the composition having immunological reactivity of the present invention is
recited in independent claims 68 [and others] and is that the composition
includes ‘solubilized (dispersed) protective antigenic factors.’” Appeal Brief, page
40 (emphasis in original). The phrase “quoted” by Appellant from claim 68 in fact
does not appear in the claim. The claim is not limited to a composition
comprising “protective antigenic factors,” but requires only that the composition
include one or more “recovered parasite antigenic factor(s).” Since the claim is
not limited to a composition comprising protective antigens, the alleged lack of
protective antigens in the prior art cannot be relied on to establish the novelty of
the claimed composition.
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