Appeal No. 1996-2568
Application No. 08/071,304
claims, the examiner states that “Yates presents in vitro data showing the
immunosuppressant properties of G , but does not explicitly teach a method for in vivo
M4
suppression of the immune response. The examiner then applies Yates in various
combinations with either Fabricius or DeLoach.
Appellant points out that Yates “does not set forth a physiologically acceptable
carrier” a positively recited limitation in appellant’s composition claims. See, Brief,
page 9. In addition, appellant takes the position that when Yates is taken as a whole it
teaches away from the claimed invention. In determining whether the claimed invention
is obvious, a prior art reference must be read as a whole and consideration must be
given here the reference teaches away from the claimed invention. Akzo N.V.,
Aramide Maatschappij v.o.f. v. United States Int’l Trade Comm’n, 808 F.2d 1471,
1481, 1 USPQ2d 1241, 1246 (Fed. Cir. 1986).
The examiner identifies that Yates illustrates a G immunosuppressant effect in
M4
mixed leukocyte cultures. However, the examiner does not consider the other
teachings in the Yates reference. Particularly, Yates, page 422, “[t]he data in Table IV
show that GM4 & GM3, resulted in no inhibition of Con A reactivity even at the highest
concentration of 12.6 nanomoles.” Yates concludes in the discussion at
4
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