Appeal No. 1999-1413
Application 08/176,024
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532, 28
USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is established
when the teachings from the prior art itself would appear to have suggested the claimed
subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d 781, 783, 26
USPQ2d 1529, 1531 (Fed. Cir. 1993). A reference is considered in its entirety for what it
fairly suggests to one skilled in the art. In re Wesslau, 353 F.2d 238, 241, 147 USPQ 391,
393 (CCPA 1965). With this as background, we analyze the prior art applied by the
examiner in the rejection of the claims on appeal.
According to the examiner, McCutchan 1 and 2 describe monoclonal antibodies
which are specific for epitopes of a peptide which corresponds to a region of the P. Vivax
CS (circumsporozite) protein. The specification, page 2, states that the monoclonal
antibody disclosed by McCutchan et al (Science 230) and McCutchan et al (U.S. Patent
No. 4,693,994) is the monoclonal antibody of the instant invention which is designated
NVS3. Answer, page 5. The examiner acknowledges that the McCutchan references do
not teach a composition comprising a pharmaceutical amount of a monoclonal antibody
NVS3 in a pharmaceutically acceptable carrier. Id.
Harlow is cited by the examiner as establishing that it was well known in the art at
the time of the invention to produce solutions of monoclonal antibodies in phosphate
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