Appeal No. 1997-2374
Application No. 08/064,352
patent in the United States" (Examiner's Answer, p. 4, and Second Supplemental
Examiner's Answer, p. 1).
Appellants disagree, arguing that “[i]n view of all of the facts surrounding the
transfers, the materials transferred were not ‘in public use,’ and therefore the Research
Agreements are not properly deemed prior art” (Brief, pp. 11-12). Appellants cite
passages in the agreements themselves, discussed infra, that appellants argue, for
example, restrict the transferred materials to noncommercial use. Appellants (Brief,
p. 9) also direct our attention to the 37 CFR § 1.132 declaration of Dr. Gangemi, dated
January 20, 1994, among others, which attests to the understanding of recipients that
research materials transferred per these agreements were to be maintained under a
duty of confidentiality.
It is the examiner who bears the initial burden of establishing reasons of
unpatentability. In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir.
1992). Consequently, the examiner has the burden to establish a prima facie case of
public use. To meet that burden, the examiner has relied wholly on Research
Agreements UR1, VR1, and UR2. According to the examiner they evidence a public
use of monoclonal antibody 83A25 in this country more than one year prior to the filing
date of the application. We have carefully reviewed these documents but fail to find
evidence that monoclonal antibody 83A25 was used in this country more than one year
prior to the filing date of the application.
application for patent in the United States, ... .
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