Appeal No. 95-2070
Application No. 08/073,816
“hybridoma cell line” encompassed by this first aspect of claim 1 on appeal must have all
the identifying characteristics of hybridoma cell line B6H12, ATCC HB 9771. There is only
one hybridoma which meets that description, i.e., hybridoma cell line B6H12, ATCC HB
9771.
Turning to the second aspect of claim 1, we find this portion of claim 1 to be
directed to a cell derived from hybridoma cell line B6H12, ATCC HB 9771 having the
recognition and antigenic properties recited in the remainder of the claim. Therefore, for a
given hybridoma to meet the requirements of the second aspect of claim 1, it must be
“derived” from hybridoma cell B6H12, ATCC HB 9771 and possess the recognition and
antigenic properties set forth in the remainder of the claims.
With this claim construction in mind, it becomes clear that the examiner’s rejection
must be reversed. In stating the rejection on pages 6-9 of the Examiner’s Answer, the
examiner does not explain how the applied prior art would have taught or suggested to one
of ordinary skill in the art the hybridoma cell line B6H12, ATCC HB 9771. Without access
to that hybridoma, it is not apparent how one would obtain a cell derived therefrom that has
the recognition and antigenic properties set forth in the remainder of claim 1 on appeal.
Since the examiner’s rejection does not take into account the subject matter of claim 1 as
a whole, it is legally insufficient and can not be sustained.
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