Appeal No. 1998-1987
Application No. 07/915,783
Background
The specification discloses a method for solubilizing and recovering
antigens from protozoan parasites such as malaria-causing Plasmodium species.
In the disclosed method, parasite-containing material (e.g., parasite-infected
blood or tissue) is suspended in an aqueous solution and detergent is added.
Specification, pages 5-6. The detergent solubilizes the parasite antigens so that
they can be isolated from residual materials. The specification states that the
antigen-containing compositions produced by the disclosed method are
potentially useful as vaccines or as diagnostic agents. Id., page 3.
Discussion
The claims are directed to compositions comprising plasmodial antigens,
and methods of making and using such compositions. Appellant indicates that all
of the claims stand or fall with claim 68, with respect to most of the rejections, or
with claim 84, with respect to the rejection based solely on 35 U.S.C. § 103. See
the Appeal Brief, pages 7-9. We therefore limit our analysis to these claims.
1. The obviousness-type double patenting rejection.
Obviousness-type double patenting is a judge-made doctrine that
prevents an extension of the patent right beyond the statutory time
limit. It requires rejection of an application claim when the claimed
subject matter is not patentably distinct from the subject matter
claimed in a commonly owned patent. Its purpose is to prevent an
unjustified extension of the term of the right to exclude granted by a
patent by allowing a second patent claiming an obvious variant of
the same invention to issue to the same owner later.
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