Appeal No. 2001-2524 Page 8
Application No. 08/369,295
The examiner provides no factual evidence to suggest that a person of ordinary
skill in the art, following the teachings of appellant’s disclosure would be forced
to experiment unduly in order to practice the claimed invention.
On reflection, in our opinion, the examiner failed to provide the evidence
necessary to establish a prima facie case of non-enablement. Accordingly, we
reverse the rejection of claims 27, 40-44, 50, 51 and 53-55 under 35 U.S.C.
§ 112, first paragraph, as being based on an insufficient disclosure to support or
enable the scope of the claimed invention.
THE REJECTION UNDER 35 U.S.C. § 103:
According to the examiner (Paper No. 38, page 4) Jones teach that
antibodies directed toward C-terminal regions of streptococcal M protein provide
better cross-reactivity to various serotyping strains of group A streptococci as
compared to those directed toward the N-terminal region. The examiner relies
on McKenzie and Beachey to teach mucosal carrier proteins. We note of
interest the examiner’s reliance on Beachey (Paper No. 38, page 4) for the
disclosure “that protein carrier[s] such as tetanus toxoid are used to evoke
opsonic and protective antibodies to antigenic peptides and further exemplifies
‘natural’ carrier proteins such as BSA and OVA.”
However, as appellant points out (Brief, page 15), Jones finds (page
1236) that their antibodies were not opsonic. Jones states (id.) “[w]hether the
lack of function of these antibodies is due to the location of their epitopes on the
molecule or their complement fixing capabilities is currently under investigation.”
Jones concludes by offering a hope (id.) that the M protein epitopes they
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: November 3, 2007