Appeal No. 1997-4277
Application No. 08/290,038
DISCUSSION
In reaching our decision in this appeal, we have given careful consideration
to the appellants’ specification and claims, and to the respective positions
articulated by the appellants and the examiner. We make reference to the
examiner’s Answer2 for the examiner’s reasoning in support of the rejection. We
further reference appellants’ Brief3 for the appellants’ arguments in favor of
patentability.
THE REJECTIONS UNDER 35 U.S.C. § 103:
The initial burden of presenting a prima facie case of obviousness rests on
the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992).
Claims 1, 3, 9 and 11:
The examiner argues (Answer, page 2) that “Kyoizumi discloses a scid/scid
mouse having human fetal bone, human fetal liver and human fetal thymus
transplanted and grown in juxtaposition.” The examiner recognizes (Answer, page
3) that “Kyoizumi differs from the claims in that the reference fails to disclose the
transplantation of fetal spleen.” However, the examiner argues [t]he human
hematolymphoid organs were known in the art to be spleen, bone, thymus, liver,
lymphnodes [sic], skin and omentum.” Therefore, the examiner
2 Paper No. 16, mailed June 24, 1997.
3 Paper No. 15, received March 19, 1997.
4
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