Appeal No. 1999-1423
Application 08/261,639
After evidence or arguments are submitted by the appellant in response to a
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. On balance, we believe that the totality of the evidence presented by the
examiner and appellant weighs in favor of finding the claimed invention to be
nonobvious in view of the cited references. We find the examiner has failed to
established, on the record before us, that the cited references both suggest the claimed
subject matter and reveal a reasonable expectation of success to one reasonably
skilled in the art. The rejections of the remaining claims for obviousness are reversed.
Other Issue
The above rejections of record are reversed because the examiner failed to
provide objective evidence of knowledge in the prior art of the either of the specific
glycoproteins HIV-1 glycoprotein 41 or HIV-2 glycoprotein 36, as required by the claims.
Upon return of the application to the examiner, the examiner should consider fully the
disclosure of Chin with respect to its teachings of the use of a monoclonal antibody to
HIV-2 gp36 antigen in kits and knowledge in the art of a murine antibody specific for
HIV-1 gp 41 (columns 1-2 and 14). Chin states that the monoclonal antibody to HIV-2
gp36 specifically binds to HIV-2 and does not significantly bind to HIV-1. Column 1.
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