Appeal No. 2001-0759
Application 08/809,186
In considering the state of the art, the examiner finds that while Levy teaches
vpr-transfected cells (e.g. rhabdomyosarcomas, which are tumors of muscular origin)
can be induced to undergo differentiation events, it is not readily manifest that cells
contacted with exogenous Vpr will display the same effects. Answer, page 6.
According to the examiner the “prior art fails to teach or suggest that exogenously
added peptide can induce cellular proliferative events at the extracellular level, or, that
Vpr can traverse the cell membrane and enter the cytosolic or nuclear compartments
and prevent cellular proliferative activities.” Answer, page 7.
The appellants respond to the examiner, arguing the examiner has not
established a prima facie case of lack of enablement and has merely made general
statements that the art is unpredictable and has concluded that undue experimentation
would be required for operability. Brief, page 7. Further, appellants argue that the
examiner has not articulated reasons why one of skill in the art, at the time the
application was filed, would not have believed that exogenous Vpr protein or fragments
thereof, could be delivered to T cells, B cells or monocytes in vivo and result in cell
growth arrest. Brief, page 9.
In support of enablement of the pending claims, the appellants argue that even if
the examiner had proffered sufficient reasoning to shift the burden of proof to
Appellants, the specification discloses the growth inhibitory effect of Vpr protein in both
muscle and bone tumor cells in vitro and inhibits cell proliferation. Brief, page 12.
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