Appeal No. 95-2419
Application 07/850,770
27 USPQ2d at 1514 (emphasis added): “The examiner made reference to the difficulty
that the scientific community is having in developing generally successful AIDS virus
vaccines merely to illustrate that the art is not even today as predictable as Wright has
suggested that it was back 1983.”
Appellants acknowledge at page 11 of the “Revised Brief” (Paper No. 22, August
11, 1994) that the claims stand rejected under 35 U.S.C. § 112, first paragraph
(enablement). However, the arguments presented on pages 11-21 of that Revised Brief
are directed to a now dropped companion rejection under 35 U.S.C. § 101 (utility). Nor
does the Reply Brief (Paper No. 24, December 27, 1994) present any arguments directed
to the enablement rejection. Suffice it to say that appellants have not presented any
evidence that establishes that one skilled in the art would reasonably have expected that
the selectively deglycosylated HIV-1 envelope proteins of the present invention would
function as vaccines as required by claims 11 and 12 on appeal.
The rejection under 35 U.S.C. § 112, first paragraph (enablement) is affirmed.
OTHER ISSUES
We first direct attention to Lee. This reference was co-authored by several of the
co-inventors of this application and describes the present invention. Based upon its
publication date of March 1992, its prior art status is unclear. Be that as it may, it is of
interest for its disclosure in the concluding paragraph which reads as follows:
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