Appeal No. 1997-3542
Application No. 08/192,507
Thus, the examiner urges that Lambert provides a reason, suggestion or motivation for
using anti-IgM antibodies in in vitro assays and an expectation of success that such
antibodies, when in the form of conjugates, would be cytotoxic. Answer, page 12.
What appears to be missing from the examiner’s analysis is why one of ordinary
skill in the art would have been motivated to link the antibodies of Julius or Kung to a
cytotoxic moiety to form an immunotoxin to destroy B-cells. The antimouse IgM
antibodies of Julius were used to stimulate and induce DNA synthesis in B cells, not to
destroy the B cells. Julius, abstract and page 754, column 2. In view of this, the examiner
has not indicated why one of ordinary skill in the art would use the antimouse IgM
antibodies of Julius for the purpose of destroying B cells. If taken to its logical conclusion,
the combination of Lambert with Julius would render Julius inoperable for its intended
purpose, which is to stimulate DNA synthesis in B cells, not destroy B cells. In re Gordon,
733 F. 2d 900, 221 USPQ 1125 (Fed. Cir. 1984); In re Schulpen, 390 F.2d 1009, 1013,
157 USPQ 52, 55 (CCPA 1968). Nor do we find the proper motivation to be supplied by
Kung.
Additionally, an artisan is not compelled to blindly follow the teaching of one prior
art reference over the other without the exercise of independent judgment. See Lear
Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889, 221 USPQ 1025, 1032 (Fed. Cir.
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