Appeal No. 1996-1002
Application 07/988,945
Weglinski in a manner which would lead one of ordinary skill to arrive at the claimed
invention. Where, as here, the examiner fails to establish a prima facie case, the
rejection is improper and will be overturned. In re Fine, 837 F.2d 1071, 1074, 5
USPQ2d 1596, 1598 (Fed. Cir.1988). Therefore, the rejection of claims 18-22 under 35
U.S.C. § 103 is reversed.
We have noted the deficiencies of the combination of Takeshita and Kupiec-
Weglinski as those disclosures relate to the claimed invention.
On consideration of the remaining rejections under 35 U.S.C. § 103, we need
only determine whether Morrison or Queen, relied on in the rejections of claims 26-27,
or Williams, relied on in the rejection of claim 25, provide that which is lacking in the
Takeshita and Kupiec-Weglinski.
They do not. As we have previously determined, all of the claims require the
presence, in the antibody composition, of one of two specified monoclonal antibodies
which would bind to the IL-2R$ chain. Neither of these monoclonal antibodies have
been demonstrated to be known at the time of the invention. The additional references
provide no facts or evidence which would have reasonably suggested the substitution of
the specific claim recited monoclonal antibodies, which bind to the IL-2R$ chain, into
compositions of either Takeshita and Kupiec-Weglinski and therefore do not provide
that which is missing from the previously considered references. Therefore, the
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