Appeal No. 1996-1002
Application 07/988,945
appellants nor the examiner have made the factual findings necessary to determine
whether the present disclosure would permit one skilled in this art to use the claimed
composition in vitro as a diagnostic tool without undue experimentation.
We therefore remand the application to the examiner for the purposes of
evaluating the arguments of appellants as to the alleged use of the claimed
compositions as diagnostic tools.
The rejections under 35 U.S.C. § 103
In rejecting claims 18-22 under 35 U.S.C. § 103, the examiner has relied on the
disclosure of Takeshita and Kupiec-Weglinski. The examiner states that Takeshita
teaches (Answer, page 8):
the near complete inhibition of IL-2 dependent cell growth resulting from
blocking of binding of IL-2 to its receptor, by the combination of TU-27
(anti-IL-2R$) and H31 (anti-IL-2R") (see figure 5 and see the paragraph
at the bottom of page 1328). This reference shows the antiproliferative of
effects of a combination of IL-2R antibodies.
However, the examiner acknowledges that Takeshita does not (Answer, page 8):
specifically use the antibodies represented by the cell lines in claims 18
and 22, nor do they specifically state the exact concentrations of the
antibodies recited in claims 19-20.
The examiner concludes (Answer, page 9):
The person of ordinary skill would have been motivated to produce
monoclonal antibodies specific for both IL-2R" and IL-2R$ and would
have had a reasonable expectation of obtaining such antibodies, in view
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