Appeal No. 1995-1993
Application 07/661,370
HIV gp40 envelope protein are “equivalent” or “strikingly similar.” Answer, pp. 6 and 11.
Turning first to the references used to support Theory I, we find that Talbott teaches
the entire nucleotide sequence (9472 base pairs) and genomic organization of the
Petaluma strain of FIV. Pedersen discloses compositions comprising whole FIV, or
portions thereof. Pedersen further discloses that “Portions of the FTLV [FIV] of particular
interest include the structural and regulatory proteins encoded by the FTLV genome
including the envelope and core proteins, and fragments thereof.” Pedersen, col. 4, lines
24-27. Kieny discloses that the envelope protein of human immunodeficiency virus (HIV,
a.k.a., LAV or HTLV-III) is a promising candidate for developing a vaccine strategy. Kieny,
col. 1, lines 58-61. In Example 17, the portion of the patent relied on by the examiner,
Kieny states that “it may be useful to generate a recombinant vaccinia virus which
expresses the [human] gp40 alone” [emphasis added]. Kieny, col. 17, line 67- col. 18, line
2.
With respect to Theory I the examiner concludes that the DNA sequence encoding
the entire FIV envelope protein, or any fragments thereof, would have been obvious to one
of ordinary skill in the art in view of the combined teachings of Talbott, Pedersen and Kieny
because the claimed sequence is “equivalent to the HIV env polypeptide fragments taught
by Kieny et al., including the carboxyl-proximal gp40, produced by Kieny et al. for vaccine
production, ... [and] ... because Pedersen et al. (‘753) specifically teach that such products
are immunogenic and useful for preparing vaccines... and because Talbott et al. indicate
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