Appeal No. 1997-2393
Application No. 08/183,381
enhanced or CEA-specific antigenic determinants, the reference is silent with
respect to anti-idiotype antibodies.
Therefore in our opinion the examiner failed to meet her burden of
establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992). Accordingly, we reverse the examiner’s
rejection of claims 1, 5-8, 14-18, 22, 24-28, 34 and 35 under 35 U.S.C. § 103 over
Hellstrom in view of the combined teachings of Klein, Estabrook, Huberman and
Haagensen.
Claims 9-13 and 19-21:
According to the examiner (Answer, page 11) Thornton “teach the use of
anti-idiotype antibodies to an epitope on gp120 as a therapeutic … [and]
Rubinstein … teach the use of anti-idiotype antibodies to P. vivax…. The prior art
teach the inventive concepts, but differs in not raising the anti-idiotype antibody in a
baboon.” The examiner applies (Answer, page 12) Herlyn to “teach that the results
of using anti-idiotype antibody have implications for cancer immunotherapy and also
suggest a general applicability of Ab2 … immunizations of humans in vaccination
approaches to pathogens….” However, Herlyn also does not teach baboon anti-
idiotype antibodies. To make up for the deficiencies of Thornton, Rubinstein and
Herlyn the examiner applies the teachings of Klein, Haagensen, Estabrook and
Huberman discussed supra.
Appellants argue (Brief, page 17) that “neither the Thornton reference nor the
Rubinstein reference suggests the use of baboon anti-idiotype antibodies.” In
addition, appellants argue (Brief, page 18) that “Herlyn et al. performed their studies
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