Appeal No. 1999-1162
Application No. 08/427,837
relative to “immunogenicity” of the claimed composition. Thus, in the present case we
interpret the term “highly immunogenic” as used in claim 9, consistent with providing a
protective antibody response (Example, VII, page 9) or production of neutralizing
antibodies (Example V, pages 7-8). We also find that the claimed composition
encompasses a composition wherein the immunogencity is sufficient to provide an
effective vaccine (specification, page 1).
We interpret the terms “copurified” and “prepared by copurification” in claim 9, as
directed to a method of preparation of the claimed composition and not limiting of the
characteristics of the composition. The patentability of a product does not depend on its
method of production. In re Pilkington, 411 F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA
1969).
Grounds of Rejection
1. Claim 9 stands rejected under 35 U.S.C. §102(b) as unpatentable over Ray.
2. Claims 9, 19 and 20 stand rejected under 35 U.S.C. § 102(e) as unpatentable over
Wathen.
3. Claims 9, 19 and 20 stand rejected under 35 U.S.C. § 112, first paragraph, as the
specification, as originally filed, does not provide support for the invention as now claimed.
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