Appeal No. 1997-2368
Application 08/158,782
Claims 1, 3-6, 8-10, 19, 20, 24, 25, 39-44, and 46-48 stand rejected under the
judicially created doctrine of obvious-type double patenting as being unpatentable over
claims 1-29 of U.S. Patent 5,332,567 to Goldenberg.
We reverse.
BACKGROUND
The invention is described by applicants, at pages 4 and 8 of the specification, as
being directed to a method of targeting a therapeutic agent to a focus of infection which
comprises injecting an infected patient with an antibody conjugate, the antibodies of which
specifically bind to accessible epitopes of a pathogen associated with the infection or a
pathogen-associated antigen, wherein the conjugate is comprised of a plurality of
chemically linked antibodies or fragments thereof and a chemically linked therapeutic
agent. The use of the conjugate in the manner claimed is stated to result in an increased
likelihood that the therapeutic agent will reach the site of the infection.
DISCUSSION
The rejection under 35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that burden is met, does the burden of
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