Ex parte ARUFFO et al. - Page 4

                Appeal No. 94-1696                                                                                                            
                Application 07/811,129                                                                                                        

                T cell receptor CD11a/CD18 (a.k.a. LFA-1) and a second region                                                                 
                which “substantially corresponds” to an immunoglobulin constant                                                               
                region.  LFA-1 (lymphocyte function-associated antigen 1) is a                                                                
                cell surface glycoprotein which promotes leukocyte adhesion in                                                                
                immunological and inflammatory reactions.  In addition, the                                                                   
                claimed invention is directed to methods for (i) activating T                                                                 
                cells, (ii) increasing the proliferative response of CD4  T                                   +                               
                cells, and (iii) inducing the production of IL-2 by T cells, by                                                               
                stimulating T cells with the referenced fusion proteins and a                                                                 
                ligand which binds the T cell antigen receptor, CD3.                                                                          
                         In the case before us, the examiner has predicated his                                                               
                conclusion of obviousness on the teachings of Springer and                                                                    
                Zettlmeissl.   Springer is a review article which describes the2                                                                                                         
                phenomenon of cellular adhesion with respect to T cell receptors                                                              

                         2We note in passing that the examiner refers to the                                                                  
                Staunton publication, a reference which was not included in the                                                               
                statement of the rejection.  Purportedly, Staunton teaches the                                                                
                cloning of the ICAM-2 molecule and, thus, demonstrates that the                                                               
                nucleotide and amino acid sequences of said molecule were known                                                               
                in the art.  Answer, p. 2.  However, we point out that it is well                                                             
                established that “[w]here a reference is relied on to support a                                                               
                rejection, whether or not in a ‘minor capacity,’ there would                                                                  
                appear to be no excuse for not positively including the reference                                                             
                in the statement of the rejection.”  In re Hoch, 428 F.2d 1341,                                                               
                1342, n. 3, 166 USPQ 406, 407, n. 3 (CCPA 1970).  Accordingly,                                                                
                since the examiner did not include Staunton in the statement of                                                               
                the rejection, we have not considered any statements or arguments                                                             
                made by the examiner concerning this reference.                                                                               

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