Appeal No. 1997-3542
Application No. 08/192,507
Thus, the burden shifts to the appellants to rebut the prima facie case of lack of
enablement established by the examiner. Appellants respond to this rejection by
indicating that the 2G10 cell line was deposited with the ATCC on April 23, 1990 and was
given Deposit Accession No. ATCC HB 10436. Appellants do not provide arguments or
evidence as to why a deposit of 2G10 and IC2 are not required.
As acknowledged by the examiner, the appellants have failed to provide sufficient
assurances that the required deposit has been made and all the conditions of 37 CFR §
1.801-1.809 have been met. In addition, appellants have failed to address the requirement
for deposit of 1C2 hybridoma reference in claim 14.
It would appear that the appellants have failed to meet their burden in rebutting
the examiner’s prima facie case of lack of enablement and, therefore, the rejection
under 35 U.S.C. § 112, first paragraph for lack of enablement is sustained.
35 U.S.C. § 112, second paragraph
Claim 14 stands rejected under 35 U.S.C. § 112, second paragraph for failing to
particularly point out and distinctly claim the subject matter which appellants regard as
the invention. The examiner states that claim 14 is indefinite due to the recitation of
“either” in the claim, which renders the claim confusing.
The appellants acquiesce to this rejection. Brief, page 5.
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