Appeal No. 2000-1929
Application No. 08/019,297
pages 10-14. Thus, Appellants argue that the “specification describes the use of
immunological complexes, not as mere end products, but as essential parts of
immunological methods for the purification and analysis of HIV-1 antigens and
antibodies that bind to HIV-1 antigens.” Id., pages 14-15.
“[T]he PTO has the initial burden of challenging a presumptively correct
assertion of utility in the disclosure.” In re Brana, 51 F.3d 1560, 1566, 34
USPQ2d 1436, 1441 (Fed. Cir. 1995). The instant specification, however, does
not assert a utility for the isolated immune complexes now claimed. The
specification asserts that viral extracts containing p25 are useful for detecting
HIV-specific antibodies in patient sera. See page 10, line 30 to page 11, line 2,
and page 9, lines 15-20. We will assume, for the sake of argument, that that
asserted use for the viral proteins would be understood by those skilled in the art
to imply the corresponding use of HIV p25-specific antibodies in detecting or
purifying p25, although that utility is not expressly asserted.
We also recognize that the immune complexes of the instant claims would
be formed in such processes, and specifically in the radioimmunoprecipitation
and ELISA assays discussed in the specification (pages 14-19). However, there
is an important distinction between products that are formed during a process
and products that are useful in a process. Here, the claimed immune complexes
are formed during the process of using an antibody to detect or immunopurify a
viral protein or during a process of using a viral protein to detect antibody to the
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007