Appeal No. 2001-0759
Application 08/809,186
In addition, appellants argue that the Declaration under 37 CFR § 1.132 of David
B. Weiner and exhibits, submitted on April 27, 1999, provide evidence supporting the
operability of the invention. According to appellants, exhibit A presents data showing
inhibition of cell proliferation by endogenously expressed Vpr in tumor cells of a variety
of types including breast, colon, brain, bladder and fibroblast. Brief, page 13. “Exhibit
A also presents data on the ability of endogenously expressed Vpr to suppress the
growth of tumor cells in an in vivo animal model.” Id. “Exhibits B and C together
provide evidence pertaining to the ability of exogenously added Vpr to inhibit cellular
proliferation in T cells and monocytes in vitro.” Id. Appellants suggest that those of
skill in the art would find such data to be strongly suggestive of the role of Vpr protein in
mediating cellular proliferative events in T cells and monocytes, the cell types of the
present invention. Id.
In response, the examiner acknowledges that the “Declaration provided by Dr.
Weiner reviews the scientific content of these exhibits. The Examiner does not dispute
these scientific findings and appropriately drafted claim language directed towards
these embodiments would be acceptable.” Answer, pages 8-9.
From the examiner's response, it would appear that the examiner has not, in the
first instance, properly considered the applicability of the rejection for lack of
enablement in view of the pending claim scope, which has already been limited to T
cell, B cell and monocyte cell types. Nor has the examiner properly reconsidered the
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