Appeal No. 2000-0839
Application No. 08/355,502
Mosmann teach “the nucleotide and corresponding amino acid sequence of
mammalian IL-10, a method for producing the IL-10 polypeptide and the IL-10
peptide in a pharmaceutically acceptable carrier, but does not teach chimeric
proteins comprising IL-10 bonded to the Fc region of an IgG molecule which
increases it[s] circulating half-life.” The examiner finds (Answer, page 5) that “[o]ne
would have been motivated to use a chimeric protein comprising IL-10 and Fc to
decrease its clearance rate in vivo….”
In response, appellants direct our attention to Capon II arguing (Brief,
page 7) that Capon II:
reported fusion between CD4 and the Fc region of IgG…. Capon [II]
expected both portions of the molecule to retain their biological
activities after the fusion because CD4 contains immunoglobulin-like
domains that are highly reminiscent of the domains in the
immunoglobulin molecule itself. However, despite this sound
reasoning, Capon [II] discovered that the CD4/Fc chimera did NOT
retain all of the biological properties of its Fc component.
Accordingly, one of ordinary skill in the art, viewing the art as a whole,
would learn that even when the characteristics of two molecules
suggest that they will fold in a compatible way, biological activity can
be lost.
According to appellants (Brief, page 6) “[t]he [e]xaminer has disregarded this
argument … simply because it is based in part on a reference that was initially
applied against the claims and then withdrawn.” We note the examiner’s statement
(Answer, page 10) “[w]ith respect to [a]pplicants arguments concerning … [Capon
II], the instant rejection is based on the subsequent Capon et al. ‘964 patent which is
presently being applied to the claims.” It is not sufficient for the examiner to dismiss
appellants’ evidence of non-obviousness, simply because the reference supporting
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