Appeal No. 2002-1355 Page 6
Application No. 08/907,783
The examiner concluded that it would have been obvious to “use the
immortalized B cell line (T2) that lacks major histocompatibility complex antigens
taught by [the ATCC catalog], to avoid alloreactivity of T cells taught by
[Schwartz], in place of the B cells taught by [Goronzy] in the in vitro allergen
system taught by Yokozeki . . . in order to be able to reconstruct in vitro all the
necessary components to detect the presence of allergens without having to
purify B cells from health donors and to provide a reproducible source of antigen
presenting cells.” Examiner’s Answer, pages 4-5.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness.” In re Rijckaert, 9 F.3d
1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). “The consistent criterion
for determination of obviousness is whether the prior art would have suggested
to one of ordinary skill in the art that this process should be carried out and would
have a reasonable likelihood of success, viewed in the light of the prior art. Both
the suggestion and the expectation of success must be founded in the prior art,
not in the applicant’s disclosure.” In re Dow Chemical Co., 837 F.2d 469, 473, 5
USPQ2d 1529, 1531 (Fed. Cir. 1988) (citations omitted).
Appellant argues that the references do not support a prima facie case of
obviousness. Among other things, Appellant argues that even if the references
were “combined in the manner suggested by the PTO, the method would not
work to screen a test compound.” Appeal Brief, page 7. In particular, Appellant
argues that, if the references are combined as suggested by the examiner, “one
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