Appeal No. 93-3114
Application 07/825,465
Examiner’s Answer, p.3). Representative Claim 1 reads:
1. A method for treating cattle and sheep
to prevent foot rot or liver necrosis comprising
administering a Fusobacterium necrophorum bacterin,
which is a B-propiolactone inactivated Fusobacterium
necrophorum isolate, to the animal being treated.
1. Rejections based on Maas
Claim 1 stands rejected under 35 U.S.C. § 102(b) because
Maas purportedly describes the claimed process, and under
35 U.S.C. § 102(f) because applicant signed a statement that
he actually examined the Maas dissertation prior to the June
7, 1990, the filing date of applicant’s parent application.
A. Maas’ disclosure
In Chapter III, “The Immune Responses of Mice and Cattle
to Fusobacterium Necrophorum,” at pages 101-102, bridging
paragraph, Maas describes the preparation of vaccines
(emphasis added):
Three whole-cell monovalent F. necrophorum
vaccines (FN 2101, FN 2382, and FN 3080) were
prepared. The bacteria were removed from the
surface of plate cultures (BHIBA) with a sterile
loop and suspended in sterile 0.1 M PBS at pH 7.1
to a turbidity comparable to a No. 5 tube of a
McFarland nephelometer set. Beta-propiolactone
(BPL) . . . was added (0.1% v/v). The resulting
mixtures were incubated for 4 days at 4 C to kill
the bacteria. . . . [T]he vaccines were then warmed
at 37 C for 4 hours to eliminate the concentration
of (BPL)(Staples, 1981). A low viscosity aluminum
hydroxide gel (10% v/v) . . . was added as an
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