Appeal No. 1999-1423
Application 08/261,639
interpreted without hindsight reconstruction of the invention from the prior art. All the
claims under appeal require specific glycoproteins selected from the group consisting of
HIV-1 glycoprotein 41 and HIV-2 glycoprotein 36. However, these claim elements are
not suggested by the applied prior art or specifically addressed by the examiner in the
statement of rejection. In this regard, while Tzeng does appear to generally teach the
use of “any antigen having specific reactivity with the particular antibody of interest” in
its described assay and device (specification, page 13), there is no specific mention of
the use of HIV antigens or the detection of antibodies to HIV-1 or HIV-2, in particular
glycoproteins selected from the group consisting of HIV-1 glycoprotein 41 and HIV-2
glycoprotein 36.
To supply these omissions in the teachings of the applied prior art, the examiner
made determinations that these differences would have been obvious to an artisan or
that they are commercially available. Answer, page 5. However, we find these
determinations have not been supported by evidence of commercial availability or any
evidence that would have led an artisan to arrive at the claimed invention.
Appellant, similarly, argues that the disclosure of Tzeng makes no mention of the
detection of HIV antibodies using the specific antigens employed by the Appellant, and
that the Examiner’s broad conclusion can only be supported by the luxury of hindsight,
a legally improper way to conduct an obviousness determination. Brief, page 13. We
agree.
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