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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