Appeal No. 2000-1929
Application No. 08/019,297
skilled in the art, reading the original disclosure, would not immediately discern
the limitations at issue in the claims. See Purdue Pharma, 230 F.3d at 1323, 56
USPQ2d at 1483.
Appellants also argue that
The extract used of the ELISA was a crude extract of purified HIV-1
virus. As Appellants had demonstrated, purified HIV-1 virus
contained p25, p15, p36, p42, and p80. Accordingly, when
Appellants purified the immunological complexes formed with the
crude extract of purified HIV-1 virus, they were purifying all the
immunological complexes formed between the proteins in this
extract and the patient sera. The skilled artisan recognizes that this
would include immunological complexes containing p25, p15, p36,
p42, and p80 proteins and antibodies against these proteins.
Consequently, the skilled artisan would conclude that Appellants
had possession of purified immunological complexes formed
between p25, p15, p36, p42, and p80 and patient sera.
Appeal Brief, pages 31-32.
This argument is specious. The record contains no evidence to support
Appellants’ contention that the patient sera used to form immune complexes with
HIV extract contained antibodies to any of p15, p36, p42, or p80. The evidence
of record, in fact, shows just the opposite. The specification discloses that sera
from HIV-infected patients does not contain antibodies to any of p36, p42, or p80.
See page 9, lines 11-13: “The envelope proteins of the virus appeared as not
detectable immunologically by the patients’ sera.”
The evidence in the record would not have led the skilled artisan conclude
that Appellants were in possession of antibodies to HIV proteins other than p25,
or immune complexes comprising such proteins, at the time the application was
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