Appeal No. 2001-1263 Page 7
Application No. 08/475,955
predictability of the claimed peptides to use Appellant’s invention.” In support of this
rejection, the examiner relies upon Wraith, Tisch, and Kaliyuperumal.
We have considered the evidence relied upon by the examiner but do not find
that it supports a conclusion that claims 7 through 9 are non-enabled.
Turning to Wraith, the examiner states at page 4 of the Answer that Wraith
teaches “Inhibition of the response restricted by one class II molecule may lead only to
the escape to an autoimmune response to a separate epitope restricted by a different
class II molecule.” (Page 253, column 1). However, the entire passage from which the
examiner extracted the quote from Wraith reads as follows:
Several potential difficulties are apparent in using MHC “blocking: peptides
to treat autoimmune disease. First, peptides are small and would be expected to
be rapidly cleared from the circulation. An effective strategy may therefore
require the use of slow-release systems or frequent injection schedules. Second,
some autoantigens have multiple distinct epitopes that are presented by different
class II molecules of the MHC (Zamvil et al., 1988). Inhibition of the response
restricted by one class II molecule may lead only to the escape to an
autoimmune response to a separate epitope restricted by a different class II
molecule. Third, Ac1-11[3A,4A] may be itself immunogenic in mice.
Administration of such a peptide could induce a “bystander” Th cell response
that, rather than blocking recognition of a self-peptide, could increase the overall
T cell response to the self-antigen by recruiting cells specific for subdominant
epitopes. This drawback would be overcome by using I-Au binding peptides of
self-proteins to which the animal would normally be tolerant.
As seen, the examiner has cropped the quote and has not considered the document in
its entirety. At best, the concern expressed by Wraith relied upon by the examiner is
“only a potential difficulty.” What the examiner has ignored on this record is the
conclusion of Wraith set forth in the last sentence of the article “[b]ased on these
properties we have been able to demonstrate the feasibility of immune intervention in an
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