Appeal No. 1997-0798
Application 08/128,020
DISCUSSION
We agree with appellants that the evidence relied upon by the examiner
does not establish a prima facie case of obviousness against the claimed subject
matter. The examiner now agrees that the first reference relied upon, Cummins, does
not directly suggest the use of troponin T as a means for diagnosing and/or monitoring
myocardial necroses. Rather, as clarified at page 10 of the Examiner’s Answer, the
rejection is based upon the purported obviousness of one of ordinary skill in the art to
select one of the troponins as a marker for diagnosis of myocardial infarction. From the
examiner’s perspective once one selects troponin T as the marker, it would have
required routine skill to develop an appropriate antibody to implement this use. In this
regard, the examiner relies upon Lim for its teaching of a monoclonal antibody to
troponin T, albeit one that does not distinguish between cardiac muscle troponin T and
human skeletal muscle troponin T as required by the claims on appeal.
To make up for this shortcoming, the examiner relies upon Sevier, a review
article concerning monoclonal antibody technology. Specifically, Sevier discusses the
possibility of eliminating unwanted cross-reactivity in monoclonal antibodies through
appropriate screening. The examiner does not allege that Sevier provides any evidence
which is directly related to raising antibodies which distinguish between human cardiac
muscle troponin T and human skeletal muscle troponin T in the manner required by the
claims on appeal. Gahlmann and Leszyk are relied upon for their discussion that
cardiac muscle troponin T and human skeletal muscle troponin T are two different
proteins having differing amino acid sequences.
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