Appeal No. 2001-0893
Application No. 08/968,905
“demonstrated not only that their IL-10/Fc chimera retains its activity – it is as
effective as recombinant IL-10 (rIL-10) in in vitro and in vivo assays – but also that it
conferred prolonged protection against septic shock.” With reference to page 29-
30 of their specification, appellants argue (Brief, fn. 2) that when “[a]pplicants
administered 4000 U of either IL -10/Fc or rIL-10 to mice 24 hours before they
received a lethal dose of LPS, … [a]ll of the animals treated with rIL-10 died,
whereas 50% of the animals treated with IL-10/Fc survived….”
While the examiner states (Answer, page 9) that appellants “allege surprising
results that [a]pplicants obtained prolonged protection with IL-10, however, the
results, contrary to being surprising, would be what the prior art predicted,” the
examiner fails to identify that portion of the prior art that “predicts” appellants’
results. We note that Capon disclose (column 15, lines 19-23) that “compositions
… in which a biologically active portion of a ligand binding partner is substituted for
the variable region of an immunoglobulin chain, are believed to exhibit improved in
vivo plasma half-life.” We also note that Capon contemplates (column 16, lines 48-
55) preparing amino acid sequence variants of the binding partners with the
objective of modifying the binding partner’s plasma half-life. Both of these
disclosures, however, fail to “predict” appellants’ results wherein 50% of the animals
treated with IL-10/Fc 24 hours before receiving a lethal dose of LPS survived. We
are unable to find, and the examiner fails to identify the evidence supporting her
statement that “the prior art predicted” appellants’ results. In other words, while
Capon contemplates that the plasma half-life of a binding partner can be extended,
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