Ex parte DANIELS et al. - Page 5




                   Appeal No. 94-2208                                                                                                                               
                   Application 07/756,346                                                                                                                           


                            and cross-reactivity of this polypeptide gives evidence of its ability to                                                               
                            stimulate a strong immune response when purified and mixed with a suitable                                                              
                            adjuvant.  These polypeptides were rehydrated with RIBI adjuvant, MPL +                                                                 
                            TDM + CWS to make the test vaccine.                                                                                                     
                            As seen from these two passages, the present specification indicates that the                                                           
                   polypeptides of the present invention will stimulate a so-called “strong immune response”                                                        
                   or serve as a “vaccine” when accompanied by an appropriate adjuvant.  The claims on                                                              
                   appeal do not require the use of an adjuvant.                                                                                                    
                            Upon return of the application, the examiner should consider whether the original                                                       
                   disclosure of this application enables claims of the scope submitted, i.e., the use of any or                                                    
                   all of the present polypeptides as a “vaccine” without the use of an adjuvant.                                                                   


                                                                                C                                                                                   
                            At the time the Appeal Brief was filed, claims 9 through 16 stood rejected under 35                                                     
                   U.S.C.  102(a)/103 over a reference to Anderson.  In responding to this rejection at                                                           
                   pages 8-9 of the Appeal Brief, appellants relied upon a declaration filed under 37 CFR                                                          
                   1.132 which accompanied the Appeal Brief.  While it is not entirely clear whether the                                                            
                   examiner entered the declaration, see, e.g., page 2 of the Examiner’s Answer (“the . . .                                                         
                                                                                                                                        2                           
                   declaration under 37 C.F.R. 1.132 . . . has been reviewed, but not considered . . .) , the                                                       

                            2It is not clear how one can review a declaration but not consider it.  By this                                                         
                   statement we take the examiner to mean the declaration was not entered.  This is                                                                 
                   consistent with a handwritten notation on the upper left-hand corner of the file copy of this                                                    
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