Appeal No. 1997-4277
Application No. 08/290,038
to claims 1, 3, 9 and 11 above, and further in view of McCune,” we have discussed
the deficiency of Kyoizumi, supra. While not expressly stated, to the extent that the
examiner intends that the claimed hybrid tissue would be obvious in view of the
combination of Kyoizumi in view of McCune, we find no evidence to suggest that a
hybrid tissue would have formed from any tissues other than those of the liver and
thymus, when inserted into a mouse. In addition, we find no evidence to suggest
that even if a hybrid tissue where to form from bone, spleen and thymus that this new
tissue would be capable of “providing long-term production, for at least twenty
weeks, of human myeloid cells, B-cells and T-cells.
On this record, we are constrained to reach the conclusion that the examiner
has failed to provide the evidence necessary to support a prima facie case of
obviousness. Accordingly, we reverse the rejection of claim 13 under 35 U.S.C. §
103 as being unpatentable over Kyoizumi in view of McCune.
Claims 4, 8, 12 and 17:
Claims 4, 8, 12 and 17 depend from claims 1, 5, 9, and 14 respectively and
add the limitation “wherein said mouse lacks expression of at least one of functional
RAG-1 or RAG-2.” The examiner states (Answer, bridging paragraph, pages 5-6)
that:
Claims 1, 3, 5, 7, 9, 11, 14 and 16 were rejected for reasons as
stated above. Mombaerts discloses RAG-1 deficient mice and that
RAG-1 deficient mice do not have any mature T and B cells. It would
have been obvious to one of ordinary skill to modify the method or
animal of Kyoizumi by using the RAG-1 deficient mouse of
Mombaerts.
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