Appeal No. 1997-3542
Application No. 08/192,507
35 U.S.C. § 103
Claims 3, 4, 14 and 15 stand rejected under 35 U.S.C. § 103 over Julius and
Kung, taken with Lambert and Taylor and further in view of De Clercq.
The examiner relies on De Clercq for the disclosure of methods for generating rat-
rat hybridomas and argues that it would have been prima facie obvious to one of ordinary
skill in the art at the time the invention was made to use either mouse or rat myeloma as
an immortalizing fusion partner for making rat or mouse myeloma and represents an
experimental design choice between two equally appropriate alternatives. The examiner
argues that there is no evidence of record to establish that the claimed immunotoxins
made with a rat monoclonal antibody are unobviously or unexpectedly different from
immunotoxins made with a mouse monoclonal antibody.
The examiner argues that claims to specific monoclonal antibodies are obvious
because they appear to be functionally the same as those taught in the prior art and that
the record contains no evidence to establish that the 1C2 and 2G10 monoclonal
antibodies or conjugates comprising those antibodies differ in any unexpected or
unobvious manner from those that one of ordinary skill in the art would have expected to
obtain in view of the teachings of the cited prior art.
Appellants argue the primary combination of references is without proper
motivation. As indicated above, we agree. Furthermore, DeClercq does not cure the
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