Ex parte DANIELS et al. - Page 7




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




                                                          D                                                            
                     At page 6 of the Examiner’s Answer, in setting forth the rejection of claims 9 through            
              16 under 35 U.S.C.  103 as unpatentable over the combined disclosures of Seki and                       
              Tan, the examiner refers to section 21 of the Final Rejection.  Therein, the examiner                    
              determined that the 96 kDa surface/exposed antigen of C. psittaci described in Seki                      
              “appears to be the same antigen as that of the instant claims.”  The examiner explains that              
              the differences in molecular mass are expected.  This finding is consistent with the last                
              paragraph at page 7 of the specification which states that “[i]t should be noted, however,               
              that the molecular weights disclosed herein are not to be interpreted as absolute values.”               
                     Be that as it may, it is not apparent apart from the similarity in molecular weight, on           
              what basis the examiner determined the two antigens to be the same.  The claims on                       
              appeal are directed to polypeptides obtained from Chlamydia psittaci strain DD-34.  That                 
              strain was not used in Seki.  Appellants raise this issue at page 11 of the Appeal Brief,                
              setting forth three specific reasons why the polypeptide of Seki is different from that of the           
              present invention.  The examiner did not respond to these three substantive reasons in the               
              Examiner’s Answer.  Furthermore, appellants rely upon passages from two references of                    
              record in support of their position at page 12 of the Appeal Brief.  The examiner did not                
              respond to this position in the Examiner’s Answer.                                                       


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