Appeal No. 1997-2393
Application No. 08/183,381
Appellants argue (Brief, pages 13-14) that Hellstrom “does not suggest the
use of baboon anti-idiotype antibodies” and none of the secondary references
relied on by the examiner teach anti-idiotype antibodies. Appellants explain (Brief,
page 15) that the “Klein, Estabrook and Huberman references teach that the
immunogenic response against foreign antibodies can be minimized by treating
human subjects with primate antibodies.” Appellants argue (Brief, page 15) that this
“is the opposite of the use of a baboon-produced anti-idiotype antibody to induce an
immunogenic response. Thus, the cited references teach away from the claimed
invention.” In addition, appellants argue (Brief, page 14) that “the Haagensen
publication … suggest[s] nothing about the efficacy of baboon anti-idiotype
antibodies.”
We agree with appellants. While a person of ordinary skill in the art may
possess the requisite knowledge and ability to modify the protocol taught by
Hellstrom, the modification is not obvious unless the prior art suggested the
desirability of the modification. In re Gordon, 733 F.2d 900, 902, 211 USPQ
1125, 1127 (Fed. Cir. 1984). Here we see no such reason to modify Hellstrom with
the secondary references applied by the examiner. As explained by appellants the
Klein, Estabrook and Huberman references teach that treating human subjects with
primate antibodies can minimize the immunogenic response against foreign
antibodies. Therefore the references teach away from the claimed invention, which
requires the primate antibody to stimulate an immune response. Furthermore, while
Haagensen suggests that immunization of primates may result in antisera with
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