Appeal No.2001-1258 Page 10
Application No. 08/413,805
suggested both the GA733-2 variant of claim 1 and the pharmaceutically
acceptable composition of claim 4.
Appellants also argue that Hussey teaches away from the claimed
invention. Appellants argue that Hussey “teaches that it is not predictable that a
soluble protein will have the biological activity of the full-length protein.” (Appeal
Brief, page 10). Therefore, Appellants argue, “the examiner has failed to
establish that there is a reasonable expectation that the secreted protein would
be immunogenic and that it would be useful as in a pharmaceutical composition.”
(Appeal Brief, page 11).
This argument is not persuasive. Appellants have pointed to no specific
passage in Hussey to support their position that the truncated CD4 variants had
biological activities that differed from that of the full-length protein. Our review of
the reference has turned up no such passage. In fact, as relevant to
immunogenicity, Hussey discloses that “each of three anti-CD4 monoclonal
antibodies (19Thy5D7, 18T3A9, and OKT4A) . . . reacts with T4ex1 and T4ex2
protein.” Page 81, right-hand column. T4ex1 and T4ex2 are two truncated CD4
variants. See page 78, right-hand column. In addition, Johnson discloses that a
soluble MAG variant produced in insect cells reacted with anti-MAG antibodies.
See page 292. Finally, Appellants’ specification admits that “[t]he baculovirus-
insect cell expression system has been well recognized for its ability to
abundantly express recombinant proteins which most often resemble native
protein with respect to function, immunoreactivity, and immunogenicity.” Page 5.
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