Appeal 2007-1161
Application 09/954,166
27. In sum, the evidence establishes that a person of ordinary skill in the art
was technically proficient in protein fusion technology and its use to
improve the characteristics of many different types of binding fusion
molecules, including heterodimeric TCRs (Chang) as claimed here.
DISCUSSION
The issue in this appeal is whether it would have been obvious to a
person of ordinary skill in the art at the time the invention was made to have
replaced the soluble MHC chain in Dal Porto’s divalent molecule (Dal
Porto, Fig. 1B; Findings of Fact 10-12) with soluble T-cell heterodimer2 in
which the two TCR extracellular domains that comprise the heterodimer are
fused to Dal Porto’s immunoglobulin light chain and immunoglobulin heavy
chain, respectively.
In making an obviousness determination, it is necessary to identify the
differences between the claimed invention and the prior art, and then to
determine whether these differences are obvious in view of the scope and
content of the prior art and the level of skill in the pertinent art. Graham v.
John Deere Co., 383 U.S. 1, 13-14, 148 USPQ 459, 465 (1966).
Appellants agree that there are two key differences between Dal
Porto’s engineered molecule and the molecular complex produced by the
claimed method (Br. 13-14). First, the MHC extracellular domain fused to
2 Claim 43 recites that the first fusion protein comprises a first extracellular
and an immunoglobulin heavy chain, and that the second first fusion protein
comprises a second extracellular domain and an immunoglobulin light chain.
The Examiner’s rejection focuses on the narrower embodiment in which the
first and second extracellular domains are, respectively, the soluble
extracellular domains of the first and second subunits of the T-cell receptor.
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