Appeal No. 2000-1929
Application No. 08/019,297
or outside the viral envelope, is likely. A 36K and a 42K protein and
a 80K protein were constantly found to be associated with the
purified virus and may represent the major envelope proteins.
The specification also indicates that the putative envelope proteins (p36,
p42, and p80) were not immunologically reactive with patient sera. See page 9,
lines 11-15: “The envelope proteins of the virus appeared as not detectable
immunologically by the patients’ sera. However as soon as the core proteins
become exposed to said sera, the immunological detection becomes possible.”
The specification does not indicate that antibodies to these proteins had
been raised at the time the instant application was filed, nor does it suggest that
such antibodies should be raised or that such antibodies would be useful in AIDS
diagnosis if they were raised. At best, the specification indicates that Appellants
were in possession of crude virus lysates that were useful for AIDS diagnosis but
which contained p25 in addition to other viral proteins.
Thus, we agree with the examiner that the instant specification does not
reasonably convey to those skilled in the art that Appellants were in possession,
at the time the application was filed, of the completed inventions of the instant
claims—antibodies specific to HIV proteins other than p25, immune complexes
comprising such antibodies, or methods of making such antibodies. Put another
way, we agree with the examiner that one skilled in the art, reading the original
disclosure, would not immediately discern from the disclosure the limitations at
issue in the claims. See Purdue Pharma, 230 F.3d at 1323, 56 USPQ2d at 1483.
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