Appeal No. 2001-2411
Application No. 08/879,422
Pages 11-12 (emphasis added). See also Example 3, which compares the
results of treating dogs having malignant histiocytosis with TALL-104 cells, either
in the presence or absence of cyclosporin A (pages 16-25).
We therefore find that the specification conveys with reasonable clarity
that Appellants were in possession of the invention now claimed. The rejection
for lack of written description is reversed.
4. Enablement
The examiner rejected the claims as nonenabled because
if the term ‘functional immune system’ is interpreted as meaning
possessing all normal immune functions, no tumor bearing patient
would actually have a ‘functional immune system’ because they
possess tumors which are generally capable of generating
antitumor immune responses, yet the patient has not been able to
utilize such responses to eliminate the tumor. . . . Thus, it would
not be possible to practice the claimed method because the
claimed method stipulates that the patient have a ‘functional
immune system’ yet tumor bearing patients by definition lack a
‘functional immune system’.
Examiner’s Answer, pages 11 -12
The examiner’s rejection depends on a claim construction that would
classify an immune system as “nonfunctional” if it failed to prevent the
development of a tumor in the patient. However, as we have construed the claim
language, a “functional immune system” is not limited to immune systems that
function perfectly or that prevent completely the development of infections or
tumors. A “functional immune system” simply means an immune system that
mounts a humoral and/or cellular immune response to foreign antigens. The
examiner has provided no evidence or scientific reasoning to show that, so
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