Appeal No. 2000-1559 Page 5
Application No. 07/911,593
1988). Here, the examiner has not established that Zygraich discloses a virus
"classified in a rotavirus serotype which includes at least one human rotavirus" as
recited in each claim on appeal. Accordingly, the examiner has not established a prima
facie case of anticipation of applicants' claims under 35 U.S.C. § 102(b) based on the
cited Zygraich patent.
Applicants point out, and the examiner does not deny, that Zygraich describes
preparation of bovine rotavirus strain RIT 4237 in Example 1 (column 3, line 51 through
column 4, line 8). See the Appeal Brief, page 5, lines 9 through 12. This can also be
seen on comparing Zygraich, Example 1 with Zissis et al., page 1061, last paragraph;
and page 1062, first two paragraphs. Ward discloses that (1) human rotaviruses may
be divided into six serotypes, i.e., serotypes 1-4 and 8-9, based on differences in the
VP4 and VP7 proteins (column 2, lines 14 through 16); and (2) RIT 4237 bovine strain
rotavirus is classified as serotype 6 (column 3, lines 40 and 41). In our judgment,
therefore, the examiner has not presented adequate reason to believe that bovine
rotavirus strain RIT 4237, described in Example 1 of Zygraich, is "classified in a
rotavirus serotype which includes at least one human rotavirus."2
The rejection of claims 5, 6, 8 through 13, 15 through 21, and 29 through 31
under 35 U.S.C. § 102(b) as anticipated by Zygraich is reversed.
Ijaz
Again, for a prior art reference to anticipate in terms of 35 U.S.C. § 102, every
2 The examiner's position to the contrary, notwithstanding, page 1066, third complete paragraph
of Zissis et al. describes classification of rotaviruses by subgroup, not serotype.
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