In particular, the following portion (“first portion”) of the Cabilly applications appears
under the heading “Background of the Invention” (FF 54):
In another important use, antibodies can be directly injected into subjects
suffering from an attack by a substance or organism containing the antigen in question to
combat this attack. This process is currently in its experimental stages, but its potential is
clearly seen. Third, whole body diagnosis and treatment is made possible because
injected antibodies are directed to specific target disease tissues, and thus can be used
either to determine the presence of the disease by carrying with them a suitable label, or
to attack the diseased tissue by carrying a suitable drug.
In a portion (“second portion”) of the application that appears under the heading
“Detailed Description”, the Cabilly applications state that chimeric antibodies having human
constant regions are “less likely to elicit an immune response from a human subject when the
antibodies are injected than would the constant region from a non-human source” (FF 55).
Glaxo has not shown that the Cabilly applications do not describe therapeutic treatment.
We read this first portion of the Cabilly specification, found under the heading “Background of
the Invention”, as describing direct injection as a way of using antibodies in general in
therapeutic treatment. Glaxo has not sufficiently explained why one skilled in the art would not
read this first portion of the Cabilly applications as describing a use for the antibodies the
applications describe. Moreover, the second portion of the Cabilly applications that appears
under the heading “Detailed Description” describes injecting antibodies into a human subject.
When we consider the two portions of the Cabilly applications together, we determine that Glaxo
has not shown that the Cabilly applications do not reasonably convey to one skilled in the art that
Cabilly was in possession of the therapeutic treatment of humans.
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