Appeal No. 1997-2139
Application No. 08/114,595
Accordingly, the rejection of claims 1-6, 8-26, 29-34, 36-40 and 42-46 under 35
U.S.C. § 103 as being unpatentable over Haj-Ahmad and Muzyczka is reversed.
3. Rejection of claims 7 and 35 under § 103 over Haj-Ahmad, Muzyczka and Post
4. Rejection of claims 27, 28 and 41 under § 103 over Haj-Ahmad, Muzyczka and
Drumm
The examiner relies on Post to suggest using a herpes virus as an alternative to
adenovirus as a vector for delivering genes; and, on Drumm for disclosing CFTR cDNA
and suggesting its use in treating cystic fibrosis (answer, pp. 6-8). However, the
examiner has not pointed out, and we do not find where, Post and/or Drumm disclose
or suggest the required limitation of a recombinant adenovirus or herpesvirus vector
comprising an essential AAV gene capable of expressing an essential AAV protein.
Accordingly for the reasons stated above, we do not sustain any of the
examiner's rejections of claims 1-46 under 35 U.S.C. § 103 as unpatentable over any
combination based on Haj-Ahmad and Muzyczka.
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