Appeal No. 1997-2392
Application No. 08/089,990
HIV-1 infection in vitro, suggest that a person of ordinary skill in the art would not
have a reasonable expectation that a single monoclonal antibody would be capable
of both binding and inhibiting in vitro infection of T cells by HTLV-IIIB. On these facts,
Gilbert’s teaching that polyclonal antisera to peptide 5 binds an epitope in the CD4
binding region of HIV and neutralizes HIV infection is insufficient to provide one of
ordinary skill in the art with a reasonable expectation of successfully obtaining a
monoclonal antibody as claimed. In the absence of a reasonable expectation of
success, one is left with only an “obvious to try” situation which is not the standard of
obviousness under 35 U.S.C. § 103. See In re O’Farrell, 858 F.2d 894, 903, 7
USPQ2d 1673, 1680 (Fed. Cir. 1988).
The examiner’s reliance on Morrison, Neuberger and Zolla-Pazner fails to
make up the deficiency in the combination of Lasky, Gilbert and Sun. On these
circumstances, we are constrained to reach the conclusion that the examiner has
failed to provide the evidence necessary to support a prima facie case of
obviousness as to the claimed cell line.
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