Appeal No. 1999-1396
Application No. 08/524,668
Matsuda describes a method of establishing chicken monoclonal IgG-producing
hybridoma cell lines.
The examiner acknowledges that Murray “does not show the use of chicken
monoclonal antibodies,” but concludes that (Examiner’s Answer, pages 4-5)
[i]t would have been obvious to a person of ordinary skill in the art . . . to use
the method and cell line of [Matsuda] for the production of a chicken specific
immunoglobulin producing hybridoma and the immunodominant antigens of
[Murray] because one skill[ed] in the art would have had a reasonable
expectation of success of obtaining a monoclonal antibody which would be
specific to Eimeria acervulina and would have an inhibitory effect to infection
as [Murray] teach[es] that the polyclonal antisera used produced the desired
inhibitory effect and one skill[ed] in [the] art would have a reasonable
expectation of obtaining a monoclonal antibody which could be produced in
greater quantities and would be specific to a[n] immunodominant antigen
involved in Eimeria acervulina invasion.
If we understand the examiner’s rationale correctly, it is that it would have been
obvious for one skilled in the art to raise chicken monoclonal antibodies against the
immunodominant polypeptides in Murray’s crude sporozoite extract (i.e., those bound by
polyclonal rabbit anti-sporozoite immune serum in Murray’s Western Blot) because one
would have reasonably expected at least one of the chicken monoclonal antibodies to be
“specific to a[n] immunodominant antigen involved in Eimeria acervulina invasion.”
As set forth in In re Kotzab, 217 F.3d 1365, 1369-70, 55 USPQ2d 1313, 1316
(Fed. Cir. 2000):
A critical step in analyzing the patentability of claims pursuant to section
103(a) is casting the mind back to the time of invention, to consider the
thinking of one of ordinary skill in the art, guided only by the prior art
references and the then-accepted wisdom in the field. [] Close adherence to
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