Appeal No. 1997-2393
Application No. 08/183,381
establish that the number of inoperative combinations is so significant, that one of
ordinary skill in the art would have to experiment unduly in order to practice the
claimed invention.
Accordingly, we reverse the examiner’s rejection of claims 22 and 24-28
under 35 U.S.C. 112, first paragraph.
THE REJECTIONS UNDER 35 U.S.C. § 103:
The initial burden of presenting a prima facie case of obviousness rests on
the examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992).
Claims 1, 5-8, 14-18, 22, 24-28, 34 and 35:
According to the examiner (Answer, page 8) Hellstrom “teach[es] the use of
anti-idiotype antibody to CEA for tumor therapy in humans … [and] suggest[s] the
generation of anti-idiotype antibody in animals to include primates and
chimpanzees.” The examiner relies on Klein (Answer, page 9) to teach “there was a
lack of anti-[]species antibody response in patients to baboon IgG, presumably due
to the similarity of baboon and human IgG….” The examiner relies on Estabrook
(Answer, page 9) to teach that “baboon antibody could be
infused with no observed toxicity (hypersensitivity reactions) and no anti-baboon
antibody or anti-species antibody response….” The examiner relies on Huberman
(Answer, page 9) to teach “baboon … antibody resulted in no acute hypersensitivity
reactions….” The examiner relies on Haagensen (Answer, page 10) to teach that
“baboon antisera is thus potentially a better source of purification of anti-CEA
antibody for in vivo antibody localization of human carcinoma.”
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