Appeal No. 2004-0291
Application No. 09/091,561
Declaration, page 1.
The Declaration of Pierre Fons, dated 3/25/02, indicates that he was given the
task of reproducing the double immunization, of mice, that had been previously
performed in rabbits. “I produced several hybridomas, and I used the screening
methods described in the present patent application filed by Doctor Jean Plouet,
including the Radio Receptor Assay. It took only routine experimentation to isolate and
identify anti-id immunoglubulins [sic] from mice corresponding to the Ig2 J fraction of the
present application.” Declaration, page 1.
In addition, the appellants argue that the “present specification teaches how to
produce and sufficiently purify the claimed antibodies so that one can conduct screening
and biological activity studies (present specification, pg. 10, line 1 to pg. 21, line 18).”
Reply Brief, page 3. Appellants also argue that a patent need not teach and preferably
omits, what is well known in the art, citing Spectra Physics v. Coherent, Inc., 827 F.2d
1524, 3 USPQ2d 1737 at 1743 (Fed. Cir. 1997). Reply Brief, page 4.
Finally, appellants argue that the examiner has failed to “provide any evidence
supporting the contrary contention that one of ordinary skill in the art would not be able
to produce a monoclonal antibody given the teaching of the polyclonal antiserum.”
Brief, page 9.
We agree with appellants that the examiner has failed to provide sufficient
evidence to establish a prima facie case of lack of enablement. A patent need not teach
and preferably omits, what is well known in the art. Although not explicitly stated in
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