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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