Ex Parte ESTES et al - Page 7



             Appeal No. 2000-1559                                                              Page 7               
             Application No. 07/911,593                                                                             
                                                                                                                   
                    U.S. Patent No. 5,474,773, entitled "HUMAN ROTAVIRUSES, VACCINES AND                            
             METHOD," issued December 12, 1995, to Richard L. Ward.  That patent was based on                       
             Application No. 114,114, filed August 30, 1993, which, in turn, is a continuation of                   
             Application No. 614,310, filed November 16, 1990.  We find no error in the examiner's                  
             determination that Ward describes the invention recited in claims 5 through 7, 12, 13,                 
             and 19 through 27; and, therefore, constitutes an anticipatory reference against those                 
             claims.                                                                                                
                    Applicants' argument with respect to Ward, presented in the Appeal Brief,                       
             pages 11-13, and in the Reply Brief, page 8, is somewhat difficult to follow.  As best we              
             can judge, applicants argue that their claims distinguish over Ward because the claims                 
             recite an inactivated or live rotavirus vaccine whereas Ward discloses an attenuated                   
             rotavirus vaccine.  The argument lacks merit.                                                          
                    First, Ward's disclosure is not limited to the preparation and use of attenuated                
             vaccines.  For example, see column 13, line 66 through column 14, line 2 ("If an                       
             inactivated or subunit vaccine is to be administered by the oral, nasal or parenteral                  
             routes, attenuation of course is not necessary"); column 14, lines 36 through 38 ("Once                
             attenuated or inactivated, the viral preparations of the instant invention will presumably             
             be in a lyophilized form"); and column 14, lines 46 through 50 ("A typical inactivated                 
             vaccine suitable for oral, nasal or parental [sic] administration, and preferably                      
             intramuscular administration, may comprise about 0.1 micrograms of inactivated                         
             rotavirus in admixture with a suitable carrier, such as recited above").  Second, the                  
             recitation of a live virus in applicants' claims encompasses or "reads on" the live,                   






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