Appeal No. 2000-1783 Page 9
Application No. 08/817,719
between sCD23 and IFN-γ production and hypergammaglobulinaemia was not well
understood at the time of the invention, and that Bansal actually suggests Athat raised
levels of sCD23 are the result of increased levels of IgG, not the cause.@ On page 284,
Bansal reports that the Asignificantly higher levels of sCD23 [found] in normal males
relative to normal females . . . is also evident in patients with RA.@ AAs CD23
expression and its solubilization to sCD23 is regulated principally by IL-4 mediated
stimulation and [IFN-γ] mediated inhibition,@ Bansal suggests that this sex difference
might be explained by Aincreased levels of IFN-γ binding IgG in normals [sic] males
compared to normal females[, which] would in turn decrease the levels of
immunologically active free IFN-γ in males, leading to increased levels of sCD23.@
Bansal, page 284.
On balance, we agree with appellant that Athe [e]xaminer has not made a case
for why a skilled person would have been motivated [by the teachings of Flores-Romo,
Bonnefoy, Bansal or Armant] to treat someone with an autoimmune condition such as
rheumatoid arthritis with an anti-CD23 agent.@ Brief, page 11.
Finally, Reiter, Burmester and Hawkins were cited with respect to additional
limitations of some of the dependent claims on appeal, but do nothing to remedy the
underlying deficiency in the examiner=s conclusion of obviousness.
The initial burden of presenting a prima facie case of obviousness rests on the
examiner. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir.
1992). Each of the three rejections of the claims under 35 U.S.C. ' 103 is reversed
because the examiner has not established that treatment of autoimmune diseases by
administering CD23 binding agents would have been suggested by the prior art.
CONCLUSION
On consideration of the record, the rejections of the claims under the first
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