Ex parte MONTE - Page 3




                Appeal No. 1997-3537                                                                                                           
                Application No. 08/395,867                                                                                                     


                         The references relied on by the examiner are:                                                                         
                Thibault                                          4,981,704                         Jan.  1, 1991                              
                Martinez et al. (Martinez)                        5,405,637                         Apr. 11, 1995                              
                                                                                            (filed Jun. 30, 1993)                              
                Karjalainen et al. (Karjalainen), "A Bovine Albumin Peptide as a Possible Trigger of                                           
                Insulin-Dependent Diabetes Mellitus," The New England Journal of Medicine, Vol. 327, No.                                       
                5, pp. 302-307 (July 30, 1992)                                                                                                 
                         A reference relied on by the appellant (brief, p. 8) is:                                                              
                J. Rennie, "Formula for Diabetes:  Cow's milk for infants may contribute to the disease,"                                      
                Scientific American, Vol. 267, No. 4, pp. 24-25 (October 1992).3,4                                                             
                                                                  ISSUE5                                                                       
                         Claims 1-14 stand rejected under 35 U.S.C.  103(a) as unpatentable over Thibault                                     
                or Martinez either in view of Karjalainen.  We REVERSE.                                                                        
                         In reaching our decision in this appeal, we have given careful consideration to the                                   
                appellant's specification and claims and to the respective positions articulated by the                                        
                appellant and the examiner.  We make reference to the examiner's answer (Paper No. 9,                                          
                mailed March 6, 1997) for the examiner's reasoning in support of the rejections and to the                                     




                         3Made of record by the examiner on the PTO-849 attached to the Office action mailed July 11,                          
                1995 (Paper No. 2).                                                                                                            
                         4Appellant has apparently inverted the journal title to "American Scientific" on p. 8 of the brief.                   
                         5The examiner has withdrawn the final rejection of claims 1-14 under 35 U.S.C.  112, second                          
                paragraph, regarding the term "partially" (answer, p. 3).                                                                      
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