Appeal No. 1995-4400
Application 07/694,302
paragraph 5, it states that "This Research material ... is considered proprietary to
Provider." The agreement is replete with statements like these suggestive of control by the
inventor of the invention that was transferred to the recipient. Furthermore, to the extent that
we understand the contents of the Agreement, '90 MTA appears to require that the material
be held in confidence. Based on this and the express language contained in the
Agreement, we do not find that the examiner has established that the invention described
in '90 MTA was in "public use" more that one year prior to the filing date of the application.
Accordingly, we reverse the rejections.
§ 103 over Minson in view of Chesebro and Earl
We reverse this rejection for the reasons stated in Appellants' Brief (pp. 10-13).
The claimed invention is directed to Friend murine leukemia virus (F-MuLV) specific
monoclonal antibodies, or binding fragments thereof, specific for an antigenic determinant
of a gp85 envelope precursor protein characteristic of a methanol-fixed
F-MuLV infected cell.
Minson, the primary reference, describes obtaining monoclonal antibodies reactive
to methanol-fixed antigens as set forth in the claims. However, Minson is directed to
human papillomavirus (HPV) and not to F-MuLV as required by the claimed invention.
While we agree that "Chesebro teaches production of monoclonal antibodies to Friend
murine leukemia virus gp70 envelope protein," Examiner's Answer, p. 9, Brief, p. 11; and,
Baxter Int’l, Inc. v. Cobe Labs., Inc., 88 F.3d 1054, 1060-61, 39 USPQ2d 1437, 1442 (Fed. Cir. 1996).
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