Appeal No. 2001-2497 Page 8
Application No. 08/855,744
rejection as stated in the Examiner’s Answer would constitute a new ground of
rejection that could not be raised for the first time on appeal; the examiner would
have had to reopen prosecution.
Since the examiner expressly referred to prior Office actions, however, we
assume the examiner intended to state the rejection as it had been set out in
previous Office actions, i.e., a rejection under 35 U.S.C. § 103 based on
Goodwin in combination with either Huston or Colcher. Our review of the
rejection is based on this understanding of its basis.
Goodwin discloses a method of detecting cancers “in which the antibody
and the radiolabel are administered separately.” Page 1361. Goodwin describes
the method as follows:
Nonradioactive antibody is given first (pretargeted) and allowed
time to reach maximum tumor concentration, usually at least one
day. At the time of maximum tumor concentration of nonradioactive
antibody, the blood is quickly cleared of excess circulating
nonradioactive antibody using a special intravenous “chase”.
Shortly after (30-60 min) the radiolabel is given and images made
in 1-3 hr.
Id.
Goodwin also teaches that “[a]n obvious improvement in this system is the
development of bifunctional antibodies that could bind both a chelate and a tumor
antigen. . . . Either hybrid antibodies or antibody conjugates could be used for
this application.” Id.
Huston and Colcher both disclose single-chain VH-VL molecules with
potential diagnostic and/or therapeutic applications. Huston describes the
molecule as a “multifunctional protein” having affinity for a preselected antigen.
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