Appeal No. 2000-1559 Page 8
Application No. 07/911,593
attenuated virus disclosed by Ward. In other words, the prior art disclosure of a live,
attenuated virus fully meets applicants' claim limitation requiring a live virus.
The rejection of claims 5 through 7, 12, 13, and 19 through 27 under 35 U.S.C.
§ 102(e) as anticipated by Ward is affirmed.
Zygraich and Ijaz, in view of Estes or Smith
The examiner rejected all of the appealed claims for obviousness "over Zygraich
and Ijaz, in view of Estes or Smith." For the purposes of this appeal, we have treated
the rejection as though presented in two parts: (1) all of the appealed claims rejected
for obviousness over Zygraich and Ijaz, further taken in view of Estes; and (2) all of the
appealed claims rejected for obviousness over Zygraich and Ijaz, further taken in view
of Smith.
In our judgment, the examiner has considerably overstated the import of Estes.
The examiner's position to the contrary, notwithstanding, Estes does not teach using
expressed VP6 as a vaccine (Examiner's Answer, page 10, lines 13 through 17).
Rather, in the concluding paragraph, Estes discloses that:
Future efforts will evaluate the use of expressed VP6 as a vaccine,
using animal models that can measure passive and active protection
against virus challenge. Antisera to expressed VP6 produced in the
current study did not neutralize virus in plaque reduction assays. This
result agrees with previous reports that monoclonal antibodies to VP6 do
not neutralize virus in vitro, but it contrasts with other reports that
antiserum to gel-purified VP6 possesses low titers of neutralizing
antibodies. The inability of the expressed VP6 to induce neutralizing
antibodies, however, does not rule out a possible role for this protein in
inducing protection from infection or disease, as our understanding of the
immunologic and nonimmunologic mechanisms that are critical to induce
protection from rotavirus infection and disease remains incomplete. VP6
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