Appeal No. 2003-0847 Page 11
Application No. 08/744,685
§ 103 as being rendered obvious by the combination of Fell A or Fell B as
combined with Yamawaki-Kataoka.
Fell A is relied upon for teaching homologous recombination in hybridoma
cells. Fell B is relied upon for teaching a process for producing chimeric
antibodies using novel recombinant vectors. According to the rejection, “[t]he
recombinant DNA constructs of the invention can be used to transfect antibody
producing cells so that targeted homologous recombination occurs in the
transfected cells leading to gene modification and the production of chimeric
antibody molecules by the transfected cells.” Paper No. 17, page 16. The
rejection acknowledges that both references fail to teach the use of a murine
gamma 2A sequence.
Yamawaki-Kataoka is cited for teaching the complete nucleotide
sequence of mouse immunoglobulin gamma 2A gene. The rejection concludes:
From the knowledge of the murine immunoglobulin [gamma 2A]
gene sequence and the teachings of [Fell A or Fell B] it would have
been obvious to one skilled in the art at the time the invention was
made to modify the vectors of [Fell A or Fell B] to include to include
the IgG2A sequence [to] [sic] permit locus-specific homologous
recombination into the immunoglobulin [gamma 2A] gene locus.
Therefore it would have been prima facie obvious to a person of
ordinary skill in the art at the time the invention was made to apply
the teachings of [Fell A or B] to that of Yamawaki-Kataoka [ ] to
obtain an expression vector for the expression of recombinant
immunoglobulin genes in mouse cells. A person of ordinary skill in
the art would have been motivated to produce the claimed method
to express immunoglobulin genes of interest.
Id. at 16-17.
The burden is on the examiner to set forth a prima facie case of
obviousness. See In re Alton, 76 F.3d 1168, 1175, 37 USPQ2d 1578, 1581
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