Appeal No. 1997-4277
Application No. 08/290,038
As we have stated, supra, Kyoizumi alone or in combination with McCune
and Namikawa fail to teach the claimed mouse host, or claimed method of
producing a chimeric mouse, comprising a hybrid tissue as claimed. Mombaerts
teaching of RAG-1 deficient mice fails to make up for the deficiencies of Kyoizumi
or Kyoizumi in view of McCune and Namikawa.
On these facts, the examiner has failed to provide the evidence necessary to
support a prima facie case of obviousness within the meaning of 35 U.S.C. § 103.
Accordingly, we reverse the rejection of claims 4, 8, 12 and 17 under 35 U.S.C. §
103 as being unpatentable over Kyoizumi or Kyoizumi in view of McCune and
Namikawa in view of Mombaerts.
Claim 18:
The examiner argues (Answer, pages 6-7) that:
McCune discloses that human hematolymphoid organs can be
reproducibly engrafted into the scid/scid mouse…. McCune differs
from the claims in that the reference fails to disclose determining the
repertoire of hematopoietic cells which have the HLA type of the
progenitor cells. However, …Namikawa discloses analysis of the
‘repertoire’ of hematopoietic cells which have the HLA type of said
progenitor cells since Namikawa discloses determination of the type
of progenitor using antibodies to HLA class I cell surface
determinants. … Accordingly, the modification of the method of
McCune by determining the HLA type of the progenitor cells as
suggested by Namikawa in order to obtain a method for determining
the repertoire of a human hematopoietic progenitor cell was within the
ordinary skill in the art at the time the claimed invention was made.
Again, we remind the examiner that every limitation positively recited in a
claim must be given effect in order to determine what subject matter that claim
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