Appeal No. 2001-2316 Page 8
Application No. 08/187,879
In support of this finding, the examiner relies on Hayes, Hoffenbach, Butini,
Glasser, Rekosh, Weiss, Cohen, Kuby, Gilboa and Johnson.
Appellants, however, point out (Reply Brief, page 10) that Hoffenback and
Butini “cited by the [e]xaminer describe investigation of HIV-specific CTL activity
in humans infected with the HIV virus.” In this regard, appellants argue (id.), that
they “are not claiming a specific CTL or antibody response; rather, the claims are
drawn to immunization and protection against manifestations of infection….”
According to appellants (id.), “what is required by the claimed invention is not that
a particular mechanism or type of immune response be generated, but rather,
that the immune response which is generated by the DNA vaccine, protects …
from the manifestations of infection (i.e., disease) caused by the infectious
agent.” With regard to Glaser, appellants argue (Reply Brief, page 11):
even if latent HIV were to reside in immunoprivileged sites following
infection, partial protection (e.g., immunization that causes a rapid
reduction in viral load, such as that described in the Data
Declaration) would still be possible, thus allowing generation of an
immune response that lessens manifestation of disease and
demonstrating “immunizing” as the term is described in the
Specification.
While appellants’ argue that it would be possible to generate an immune
response that lessens manifestation of disease, the full scope of the claimed
invention (see claim 44) requires that “the mammal is protected from disease
caused by said immunodeficiency virus of interest.” Read in light of the
specification (e.g. page 7, emphasis added), “a vertebrate immunized by the
present invention will not be infected or will be infected to a lesser extent than
would occur without immunization.” See also, Reply Brief, page 4, “‘immunizing’
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