Appeal No. 1996-3797
Application No. 08/070,162
presence of additional agents such as LPS of Rothman. In this regard we note pages 13
and 14 of the specification which states:
"For use in Jijoye cells it is preferred that the Fc RII IL-4-
E
responsive element be associated with another promoter
and/or enhancer element to form a hybrid promoter. . . . The
use of a hybrid promoter is desirable when it increases the
signal strength of the reporter gene used, while maintaining
inducibility by human IL-4.
While we could offer our own interpretation of the claim and reach a conclusion as
to the obviousness or anticipation of the claim by this reference, we elect not to do so. We
1
serve as a board of review and leave to the examiner and appellants to interpret the
claims of an application in the first instance. However, upon return of the application to the
group, we would urge the examiner and appellants to at least consider whether claim 1 as
properly interpreted, would be subject to rejection over Rothman, either alone or in
combination with other prior art. Should the examiner determine that the claims are
unpatentable, the examiner should issue an appropriate communication explaining in
detail the basis of such a rejection and provide appellants with an opportunity to respond.
Summary
To summarize, the examiner's rejections of claims 1-9 under 35 U.S.C. § 103 are
reversed.
135 U.S.C. § 7(b)("[t]he [board] shall . . . review adverse decisions of examiners upon applications
for patents . . .").
9
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