Appeal No. 2001-0893
Application No. 08/968,905
appellants’ Brief4, and Reply Brief5 for the appellants’ arguments in favor of
patentability. We note the examiner entered and considered apellants’ Reply Brief.6
THE REJECTION UNDER 35 U.S.C. § 103:
According to the examiner (Answer, page 3) Gerard teach “a method for
treating or completely preventing septic shock in mice by administration of a
therapeutic amount of IL-10.…” The examiner finds (id.) that Gerard “fails to
disclose a method of treating or inhibiting septic shock with a chimeric protein
comprising IL-10 bonded to the Fc region of an IgG molecule.” The examiner relies
on Capon to make up for the deficiency in Gerard. According to the examiner (id.)
Capon teach:
chimeric proteins for directing ligand binding partners such as growth
factors, hormones or effector molecules to cells bearing ligands for
the ligand binding partners comprising a ligand binding partners
fused to a stable plasma protein which is capable of extending the in
vivo half-life of the ligand binding partner when present as a fusion
with the ligand binding partner, in particular wherein such a stable
plasma protein is an immunoglobulin constant domain.
Based on this evidence, the examiner finds (Answer, page 4) 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 argue (Brief, page 17) that “[e]ven if prima facie
obviousness were established, it is rebutted by the surprising results documented in
the specification” [emphasis removed]. According to appellants (id.) their results
4 Paper No. 28, received May 24, 1999.
5 Paper No. 30, received September 7, 1999.
6 Paper No. 32, mailed September 21, 1999.
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