Appeal No. 2001-0762 Page 3
Application No. 08/343,585
We reverse.
DISCUSSION
The examiner relies on Stewart, Wade, Vogler, Flouret, Fassina and
Bessalle to teach D-proteins which include, inter alia, bradykinin, cecropin,
angiotensin andoxytocin. Answer, pages 5-7. However, both the examiner (see
id.) and appellants (Brief, pages 4-5) emphasize that these references do not
teach D-enzymes.
The examiner relies on Wlodawer (Answer, page 7) to teach “the crystal
structure of chemically synthesized HIV protease analog.” However, both the
examiner (see id.) and appellants (Brief, page 5) recognize that Wlodawer does
not disclose or suggest the crystal structure of synthetic D-HIV protease or
reaction with D-substrates.
The claimed invention is drawn, inter alia, to a synthetic D-enzyme that is
able to catalyze an enzymatic reaction that corresponds to a natural enzyme and
not included in the statement of the rejection. As set forth in In re Hoch, 428 F.2d 1341, 1342 n.3,
166 USPQ 406, 407 n.3 (CCPA 1970), “[w]here a reference is relied on to support a rejection,
whether or not in a ‘minor capacity,’ there would appear to be no excuse for not positively
including the reference in the statement of the rejection”. Accordingly, we have not considered
these references in our deliberation.
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