Appeal No. 1998-0968
Application No. 08/031,075
when there are deficiencies in the record as to the necessary factual bases supporting” its
determination, In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967),
cert. denied, 389 U.S. 1057 (1968), we find that the examiner has not established that
Nahm anticipates the claimed invention.
Turning to the aspect of the examiner’s rejection relating to the obviousness of the
claimed invention, we find little more than a restatement of the anticipation aspect of the
rejection (“[T]he information in [Nahm] specifically characterizing the anti-strep A
antibodies . . . provided to a skilled worker in the art would have produced a monoclonal
antibody having the same specificities and function as instantly claimed, with a reasonable
expectation of success” Examiner’s Answer, pages 5 and 6). We have already
determined that, on this record, Nahm’s antibody cannot be said to inherently possess all
of the properties required by the present claims. Nor, as appellants point out, does the
examiner identify anything in the prior art which would suggest raising antibodies against
Group A Streptococci and isolating those capable of binding both the terminal N-
acetylglucosamine on the Group A Strep carbohydrate and mammalian cells. Thus, we
find this aspect of the rejection to be without merit.
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