Appeal No. 2000-1929
Application No. 08/019,297
core proteins become exposed to said sera, the immunological
detection becomes possible. Therefore the invention concerns all
extracts of the virus, whether it be the crudest ones – particularly
mere virus lyzates [sic] – or the more purified ones, particularly
extracts enriched in the p25 protein or even the purified p25
protein.
Discussion
1. The utility rejection
Claims 28-30, 35, and 42 are directed to “immunological complexes”
comprising a viral protein and an antibody bound thereto. The examiner rejected
these claims under both 35 U.S.C. § 101 and 35 U.S.C. § 112, first paragraph,
on the basis that the claimed complexes lack patentable utility. He reasoned that
“immune complexes are the end products of the antigen-antibody interaction and
it is entirely unclear what utility(ies) reside in the immune complexes
themselves.” Examiner’s Answer, page 4. The examiner argues that the
complexes are not useful in immunoassays, because
in immunology, one skilled in the art would routinely use HIV-1
proteins to detect antibodies to HIV-1 or, conversely, use antibodies
specific for HIV-1 to detect and/or identify proteins of HIV-1. But
one skilled in the art would not use purified immune complexes for
such identification. This usage is repugnant to one skilled in the
art. Immunological assays do not routinely utilize purified immune
complexes in place of purified antibodies or purified antigens for the
very basic reason that immune complexes represent the end
product of antigen-antibody interactions, not the starting material
useful in immunological assays.
Examiner’s Answer, page 5.
Appellants argue that the claimed complexes have utility because they are
formed during processes for isolating and detecting HIV proteins. Appeal Brief,
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