Appeal No. 1999-1330
Application No. 08/527,373
Adenoviruses have never been shown to induce tumors in
humans and have been safely used as live vaccines. . . .
Others have shown that adenovirus-medicated gene delivery
has a strong potential for gene therapy . . . Although other
alternatives for gene delivery . . . are also currently being
explored, none as yet appear as effective as adenovirus-
mediated gene delivery.
Here, we have shown that recombinant adenovirus
expressing wild-type p53 can efficiently inhibit DNA
synthesis and suppress the growth of a broad range of
human tumor cell types, . . . the data presented here
strongly support the concept of adenovirus-mediated p53
gene therapy of p53-deficient tumors in humans.
This portion of Wills would reasonably suggest that one skilled in this art, reading the
disclosure presented in support of the claimed invention, would have accepted the
statements concerning how to practice the invention in the manner described by
appellants.
A conclusion of lack of enablement means that, based on the evidence regarding
each of the above factors, the specification, at the time the application was filed, would
not have taught one skilled in the art how to make and/or use the full scope of the
claimed invention without undue experimentation. In re Wright, 999 F.2d 1557, 1562,
27 USPQ2d 1510, 1513 (Fed. Cir. 1993). On balance, we find the appellants’
arguments and evidence in favor of patentability persuasive when weighed against the
examiner’s evidence and arguments provided in support of the rejection. Therefore, the
rejection of claims 1 - 11 under 35 U.S.C. § 112, first paragraph, is reversed.
The rejection under 35 U.S.C. § 103
Claims 1 - 11 stand rejected under 35 U.S.C. § 103 as being obvious over Wills
in view of Liu and Nabeya. In so doing, the examiner has interpreted representative
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