Appeal No. 94-1696
Application 07/811,129
Discussion
The examiner argues (Answer, p. 3) that
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 Springer to those of Zettlmeissl,
et. [sic] al., to obtain a soluble ICAM-2/IgG fusion
protein, wherein the ICAM-2 molecule is operatively linked
to the IgG molecule. This fusion protein could be used in
combination with an anti-CD3 antibody to co-stimulate T-cell
activation and thus achieve T-cell proliferation and IL-2
production.
From a fair reading of the applied prior art, it is
difficult for us to discern on what basis this conclusion was
reached. As we understand it, the examiner’s overall position is
that because it was technologically feasible for those of
ordinary skill in the art to make a fusion protein comprising one
type of T cell receptor molecule and an immunoglobulin heavy
chain constant region, it would have been obvious to such persons
to make fusion proteins comprising any molecule involved in the
phenomenon of antigen recognition, regardless of its role (T cell
receptor versus ligand; MHC receptor versus ligand for lymphocyte
function-related antigens, etc.) or its cellular association (T
cell versus endothelial, epithelial, fibroblast, etc.). In our
opinion, the examiner has confused the level of skill in the art
with the teachings of the prior art. In re Kratz, 592 F.2d 1169,
1175, 201 USPQ 71, 76 (CCPA 1979) (The court “rejected the
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