Appeal No. 1997-4277
Application No. 08/290,038
Accordingly, we reverse the rejection of claims 1, 3, 9 and 11 under 35 U.S.C. §
103 as being unpatentable over Kyoizumi.
Claims 5, 7, 14 and 16:
The examiner incorporates her previous discussion of Kyoizumi by reference
(Answer, page 4) arguing 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 states (Answer, page 4) that “Kyoizumi fails to
disclose implantation into a site sub-cutaneously. However … Namikawa … and
McCune … cure the deficiency.” The examiner explains (Answer, page 4) that
“Namikawa discloses implantation of the fetal thymus and liver under the kidney
capsule, which is sub-cutaneously … [and] McCune discloses that SCID-hu mice
are engrafted with component organs of the human hematopoietic system including
fetal liver, bone marrow, thymus, lymphnode [sic], spleen, skin and gut.” The
examiner finds (Answer, page 4) that “the implantation of multiple components, i.e.,
fetal liver, spleen, thymus and bone fragments, in juxtaposition is obvious over the
transplantation of only several components. [sic] i.e, [sic] thymus and liver as taught
by Kyoizumi, and further in view of the suggestion by Kyoizumi to coimplant multiple
hematolymphoid components.”
As discussed supra, in our opinion, Kyoizumi fails to provide the requisite
suggestion, or expectation of success, to grow normal human fetal bone fragments
and normal human fetal spleen in juxtaposition to obtain a hybrid tissue, as required
by the claimed invention. Similarly, we find no such suggestion or expectation of
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