Appeal No. 1997-4277
Application No. 08/290,038
success of obtaining such a hybrid bone/spleen tissue in Namikawa who teach the
formation of a unique Thy/Liv structure upon coimplantation of small fragments of
human fetal thymus and fetal liver into immunodeficient SCID mice. Furthermore,
while as the examiner notes (Answer, page 8) “McCune (page 403, paragraph 3),
… taught that immunodeficient mice can be engrafted with component organs of the
human hematopoietic system including human fetal liver, bone marrow, thymus,
lymphnode [sic], spleen [sic] skin and/or gut” we find no suggestion, or expectation
of success in obtaining a hybrid bone/spleen (claim 5), or bone/spleen/thymus
(claim 14), tissue that is capable of long term production of specific human cells as
required by the claimed invention. We find no evidence to suggest that a hybrid
tissue will form from any tissues other than those of the liver and thymus. We also
find no evidence to suggest that even if such a hybrid tissue would form that this new
tissue would be capable of “long term production, for greater than twenty weeks,” of
human myeloid cells, B-cells and lymphoid progenitor cells (claim 5), or of human
myeloid cells, B-cells and T-cells (claim 14).
The examiner is reminded that “[t]he consistent criterion for determination of
obviousness is whether the prior art would have suggested to one of ordinary skill in
the art that this process should be carried out and would have a reasonable
likelihood of success, viewed in the light of the prior art.” In re Dow Chemical Co.
837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988). In our opinion, on this
record, a person of ordinary skill in the art would not have a reasonable expectation
of success in obtaining the claimed methods.
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