Appeal No. 1997-4275
Application No. 08/253,217
The examiner urges that the use of two materials in combination would have been
prima facie obvious where each is known to function for the same purpose. (Answer, page
17). The examiner urges that (id.):
each antibody is independently useful for the treatment of
bacterial/LPS infection because Ziegler et al. outright show
this treatment with anti-LPS antibody and Beutler et al. state
that such treatment with anti-TNF antibody is an “obvious
corollary” to their study.
Thus, the examiner concludes (Answer, page 20):
We have two different active sites within the same pathway,
and two different drugs/antibodies which act independently on
each of the active sites of the pathway. Absent contradictory
evidence, it is concluded that the administration of these two
antibodies would be expected to have additive or synergistic
effects when combined for the treatment of sepsis.
As the examiner realizes, the disclosure of Beutler is critical to the question of
whether a prima facie case of obviousness of the claimed subject matter is established on
this record. The examiner has provided an in depth analysis of Beutler supported by
sound scientific reasoning. (Answer, pages 7-14). However, in our opinion, the examiner
has extended the teaching of Beutler in concluding that this reference suggests the use of
an antibody to TNF for the treatment of sepsis in patients. Beutler describes tests wherein
mice are given a toxic dose of LPS in a single administration
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