Appeal No. 2002-1545 Page 9
Application No. 08/949,757
antigen, including the identity and molar ratio of four sugars contained in the
antigen, and biochemical and H1-NMR analyses of the antigen. The examiner
has not addressed why the partial structure combined with the deposited strain,
method of isolation and the H1-NMR analyses of the antigen is not sufficient to
demonstrate that appellants were in possession of the claimed antigen. See
Purdue Pharma L.P. v. Faulding Pharmaceutical Co., 230 F.3d 1320, 1323, 56
USPQ2d 1481, 1483 (Fed. Cir. 2000) (noting that the disclosure should convey
to one skilled in the art that the inventor was had possession of the invention at
the time of filing). Therefore, the rejection under 35 U.S.C. § 112, first
paragraph, lack of written description, is also reversed.
Rejections under 35 U.S.C. § 102(b)
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Wessman.
According to the rejection, the claimed antigen is claimed as having a 2:1
molar ratio of rhamnose/N-acetylglucosamine isolated from Enterococcus
asserting that the N-acetylglusoamine is analogous to 2-acetamido-2-deoxy
glucose. The rejection contends that Enterococcus was formerly known as
Streptococcus, and then states that:
Wessman discloses a Streptococcus strain which upon purification
of the surface antigen resulted in a composition which contains
rhamnose/N-acetylglucosamine (analogous to 2-acetamido-2-
deoxy-glucose) in a 2:1 molar ratio, as well as contained glucose
and 2-acetamido-2-deoxy-galactose (also known as
galactosamine). Wessman discloses an antigen with the same
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007