Appeal No. 1997-2374
Application No. 08/064,352
speculation that a public use might occur. Examiner (Examiner’s Answer, p. 5) argues
that the “form does not contain an integration clause that is standard in agreements
meant to memorialize complete agreements between parties. In the absence of such
an integration clause, the parties may make additional agreements. There is an
unresolved question here as to the content of any such additional agreements.”
Examiner (Examiner’s Answer, p. 6) also argues that the “Research Agreements do not
contain a restriction on publication of results obtained using the transferred material."
These speculations about a possible situation that could arise leading to a public use of
the monoclonal antibody are not supported by any objective evidence.
We find that UR1, VR1 and UR2 do not evidence a public use of the claimed
invention and thus are not properly deemed prior art. Accordingly, examiner has not
met its burden of establishing a prima facie case of a public use of monoclonal antibody
83A25 in this country more than one year prior to the filing date of the application.
Since the rejections of the claimed subject matter are predicated on the view that the
monoclonal antibody 83A25 was in public use in this country more than one year before
the filing date of the application, we shall not sustain the rejections of the claims under
35 U.S.C. §§ 102 and 103.
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