Appeal No. 94-3187
Application 07/939,556
Sweet and Smith (Microb. Revs. (1980) 44 (22), 303-30).
Furthermore, there has been no suggestion that the segment in
A/PR/8/34 coding for matrix protein is effective in conferring
the ability to grow in cell culture.
As explained at page 3, lines 27-30, of the specification, it is important to understand that:
Whereas it has been established by the applicants that the
RNA segment which codes for matrix protein enables growth
in cell culture to take place, it is not clear as to whether the
matrix protein itself confers this ability: it may be some other
gene product coded by the same RNA segment.
DISCUSSION
Assuming, without deciding, that the combined disclosures of Coggins, Brundage-
Anguish and Baez would have suggested to one of ordinary skill in the art to form a
genetically reassorted virus derived from an equine influenza virus and PR8 which
comprises RNA derived from the equine influenza virus coding for at least one
neuraminidase or hemagglutinin surface antigen and the RNA segment derived from PR8
which codes for matrix protein, that would not end the inquiry. Rather, a second
determination would have to be made as to whether the applied prior art would have led
one skilled in the art to reasonably expect that such a reassorted virus would grow in cell
culture. For this aspect of the claimed invention, the examiner relies upon Bosch.
Bosch acknowledges in the abstract that many influenza virus infections of cells in
culture do not result in the production of infectious virus. Bosch used Fowl Plague Virus
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