Appeal No. 1999-1313
Application 08/448,097
H. influenza type B is bactericidal and protective against H. influenzae type B, but is
ineffective against nontypable H. influenzae (specification, page 2). A lipoprotein found in
the outer membrane of H. influenzae, having a molecular weight of about 28,000 daltons, is
designated protein “e” (specification, page 2). The same protein is designated P4 in
Granoff (Examiner’s Answer, page 3). The invention pertains to nucleic acids encoding this
protein, and to nucleic acids encoding peptides and proteins having an epitope in
common with protein “e”, and to recombinant methods of producing protein “e”
(specification, pages 2-5). In the parent application, claims have been patented,
essentially drawn to a vaccine composition comprising essentially pure protein “e” of
Haemophilus influenzae or a peptide of protein “e” comprising an epitope or epitopes
thereof, in a pharmaceutically acceptable vehicle; wherein the protein “e” of Haemophilus
influenzae or the peptide of protein “e” elicits a protective immune response in a
mammalian host (see claim 1 of U.S. 5,601,831, matured from Application No.
07/491,466).
Discussion
The initial burden of establishing unpatentability rests on the examiner. In re Oetiker,
977 F. 2d 1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir. 1992). Where claimed subject
matter has been rejected as obvious in view of a combination of prior art references, a
proper analysis under § 103 requires consideration of two factors: (1) whether the prior art
would have suggested to those of ordinary skill in the art that they should make the claimed
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