Appeal No. 2000-1812
Application No. 08/432,483
it would have been obvious to one of ordinary skill in the art at the time of the
invention to make a CETP-toxoid hybrid peptide comprising amino acids
sequences of the carboxyl terminal 26 amino acid of human CETP and the
tetanus toxoid peptide taught by Valmori et al. including a peptide which
consists of SEQ ID NO. 2 except that the cysteine is deleted with the
expectation that such peptides would elicit anti-CETP antibody that binds to
the known B cell epitopes in the C terminal end of CETP with the expectation
that the antibodies would neutralize CETP activity. Alternatively the CETP-
tetanus toxic hybrid peptide could be used in assays to screen for anti-CETP
antibodies that neutralize CETP activity.
In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial burden of
presenting a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24
USPQ2d 1443, 1444 (Fed. Cir. 1992). Only if that burden is met, does the burden of
coming forward with evidence or argument shift to the applicant. Id. In order to meet that
burden the examiner must provide a reason, based on the prior art, or knowledge
generally available in the art as to why it would have been obvious to one of ordinary skill in
the art to arrive at the claimed invention. Ashland Oil, Inc. v. Delta Resins & Refractories,
Inc., 776 F.2d 281, 297, n.24, 227 USPQ 657, 667, n.24 (Fed. Cir.), cert. denied, 475 U.S.
1017 (1986).
On the record before us, the examiner has not met the initial burden of establishing
why the prior art, relied on, would have led one of ordinary skill in this art to arrive at an
isolated antigenic hybrid peptide comprising a helper T cell epitope portion linked to a B
cell portion wherein the B cell epitope portion comprises six to 26 consecutive amino
acids of the carboxyl terminal 26 amino acids of human cholesteryl ester transfer protein.
While it can reasonably be stated that Swenson describes raising antibodies in mice with
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