Appeal No. 1998-1987
Application No. 07/915,783
by the examiner is insufficient. The mere fact that different detergents would be
expected to solubilize a different set of antigens is insufficient evidence of
nonenablement where, as here, the specification shows that the antigens actually
solubilized by different detergents are all effective in producing an
immunoprotective effect. We therefore reverse the second rejection for
nonenablement.
4. The §§ 102/103 rejections.
The examiner rejected claims 11-16, 18, 27, 29, and 68-80 as anticipated
by, or alternatively as obvious in view of, either Schmidt-Ullrich or Kilejian. The
examiner also rejected the same set of claims as anticipated by or obvious over
Epstein. Finally, the examiner rejected claims 18 and 68 as anticipated by or
obvious over any of Howard, Newbold, or Epstein.
We will consider these rejections together. The examiner’s rationale is
similar for each, and in each case the claims stand or fall with claim 68. In
addition, we find it necessary to consider only the references by Kilejian and
Epstein. Since the relevant disclosures of Kilejian and Epstein are similar, we
can efficiently discuss both references together.
We begin with claim construction. See Key Pharms. Inc. v. Hercon Labs.
Corp., 161 F.3d 709, 714, 48 USPQ2d 1911, 1915 (Fed. Cir. 1998) (“[A]
determination of anticipation, as well as obviousness, involves two steps. First is
construing the claim.”). Claim 68 is directed to a water-insoluble composition
comprising plasmodial antigens, which induces “immunological reactivity to
plasmodial parasites,” and which is produced by the following process: “forming
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