Appeal No. 95-4473
Application 08/003,894
examiner's determination that Hill uses an immunogen which reasonably appears to
contain the epitope recognized by a monoclonal antibody produced by hybridoma cell line
ATCC No. HB 11106, hybridoma cell line ATCC No. HB 11107, or hybridoma cell line
ATCC No. HB 11108. On this record, therefore, we find it reasonable to conclude that a
person having ordinary skill, armed with the disclosure of Hill, would have produced
monoclonal antibodies which are "functionally equivalent" to the antibodies recited in
claims 35 through 37 and which satisfy the criteria set forth in claims 1 through 8, 17
through 25, 27 through 29 and 33.
In the briefings before this merits panel, in the Kempe Declaration executed April
25, 1994, and in the Kempe Declaration executed September 28, 1994, appellants devote
much attention to the claim limitations requiring that their monoclonal antibodies exhibit
less than one percent cross-reactivity with liver alkaline phosphatase. However, we find no
error in the examiner's determination that appellants have not
established that the "cross-reactivity" limitation serves to patentably distinguish over the
cited prior art. On this point, we agree with the findings set forth in the Examiner's
Answer and Supplemental Answer. Note particularly the Supplemental Answer, page 3,
last full paragraph.
The rejection of claims 1 through 8, 17 through 25, 27 through 29 and 33 on prior art
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