Appeal No. 1997-0473
Application No. 07/870,985
appellants, in their Appeal Brief filed in response to the Final rejection, to offer any rebuttal
to this particular basis of the rejection. While it is not readily apparent why the appellants
chose not to file a Reply Brief as provided by 37 CFR § 1.193(b)(1) to respond to this new
or reinstated basis of rejection, it remains that we have before us a record where the
issues are not completely briefed by both parties.
In addition, we would note that the examiner initially acknowledges that the present
disclosure is (Answer, paragraph bridging pages 3 and 4):
enabling for a method of neutralizing hepatitis E virus (HEV) infection in an
individual through passive immunization with a vaccine containing antibodies
which are immunoreactive with an HEV peptide which contains the C-
terminus 48 amino acid residues of the capsid protein by the second open
reading frame of the HEV genome and where the amino acid residue
sequence of said peptide contains an amino acid selected from the group
consisting of SEQ. ID Nos. 13-20, . . . .
However, in the paragraph bridging pages 7-8 of the Answer, the examiner states that:
there is no convincing evidence of record which reasonably enables the
development and use of an antibody vaccine as a means of preventing and
treating an HEV infection in an individual e.g., a human, nor is there
convincing evidence of record which established the in vitro model as being
an art accepted model of a human infected with HEV. (Emphasis added).
Since the specification and claims indicate that the vaccine used in the claimed
method acts by neutralizing the HEV virus, on the record before us, it would appear that the
examiner takes the position that the “treatment” of individuals with HEV infection is both
enabled and non-enabled by the disclosure in support of the claimed invention.
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