Appeal No. 1995-2297
Application No. 07/797,493
standard under § 103. In re O’Farrell, 853 F.2d 894, 903-04, 7 USPQ2d 1673, 1681
(Fed. Cir. 1988).
B. Claims 1, 2, 4, 6-8, 13 and 14 are drawn to a chimeric mouse.
As appellants point out, each of Pollard, Wade or Fohlmeister teach “interrodentiary
transplants” in to irradiated mice or rats. See, Brief, pages 12 and 13. To overcome the
deficiencies in each of the primary references the examiner applies McCune, to
demonstrate “the engraftment and differentiation of human tissues in an immune-deficient
mouse host.” See, Answer, page 5. However, as appellants point out, in contrast to the
claimed invention, McCune does not irradiate his mice. See, Brief, page 13. Appellants
point out that McCune states “[t]o our knowledge, no reports have appeared in which
human - -> mouse radiation chimeras have been successfully prepared, by any technique.”
See, Brief, page 13 (alteration in original). Appellants continue, citing McCune, at page 13
of the Brief, that “McCune et al. used a system that they felt ‘offers several advantages over
the radiation chimera . . . and does not require preparative irradiation’” (alteration in
original). The examiner responds by stating “contrary to [a]ppellants’ allegation, the
successful demonstration of human cell engraftment in mice by McCune [] would have
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