Appeal No. 1995-2297
Application No. 07/797,493
In addition, it does not appear that the examiner fully considered the teachings of
Reisner at page 12, lines 19-27 of a chimeric mammal having long-term stable
xenogeneic hematopoietic cells, having human T lymphocytes, human T and B
lymphocytes, cells of the human erythroid cell lineage, or cells of the human myeloid
lineage. The examiner also does not discuss the teaching is Kamel of macrophage
progenitor cell types, or the teaching of human T cells in Lubin. See, Kamel, page 1707,
see also, Lubin page 427.
Accordingly, we vacate the examiner’s rejection of claims 13 and 14 as obvious
over Reisner, Lubin or Kamel, and we remand the application to the examiner to determine
in the first instance the scope of the subject matter claimed. After determining the
appropriate scope of the claimed invention the examiner should take a step back and
reevaluate the rejection under 35 U.S.C. § 103. If the examiner believes that the claims on
appeal are unpatentable under this section of the statute, she should issue an appropriate
Office Action setting forth the rejection. In so doing, we urge the examiner to use the model
set forth in MPEP § 706.02(j). Adherence to this model will of necessity make the
examiner examine the claims on appeal on an individual basis, using the correct legal
standards.
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