Appeal No. 1997-3274 Page 6
Application No. 08/015,248
known . . . to elicit antibodies capable of neutralizing HIV infectivity in vitro.@ Answer,
page 11. Second, that it would have been obvious to make chimeric antibodies for in
vitro applications because Morrison suggests that varying effector functions may yield in
vitro applicability. Id., pages 10 and 11.
Having reviewed the Robert-Guroff reference, and the analysis of the reference
set forth in paragraphs 2-4 of Dr. Davis= declaration of November 5, 1993, we would not
go so far as to conclude, as appellants did in their brief, that the reference Asuggest[s],
on balance, that neutralizing anti-HIV-1 monoclonal antibodies will not be effective for
therapy.@ Brief, page 12 (emphasis added). On the other hand, we do think it is
reasonable to conclude, as Dr. Davis did in the declaration, that Robert-Guroff stops
short of suggesting Athat neutralizing anti-HIV-1 antibodies can be administered to
combat HIV-1.@ Declaration, page 2. Moreover, we see no basis for the examiner=s
statement that peptides representing the amino acid sequence in the region of residues
298-322 were known to elicit neutralizing antibodies. We see no evidence in Kennedy
that peptide 2 (the closest to the BAT123 peptide) actually elicited neutralizing
antibodies - Kennedy=s disclosure in this regard appears to be merely prophetic. On
this record, we agree with appellants that Anone of the references of record suggest that
anti-HIV-1 antibodies should be used in vivo,@ and A[t]here is, therefore, no suggestion
to make the claimed chimeric antibodies@ for in vivo applications. Brief, page 14.
Similarly, having reviewed the Morrison reference, in light of Dr. Davis= analysis
of the reference in paragraphs 6 through 12 of the declaration executed November 5,
1993, we agree with appellants that there is no suggestion in Morrison that Achimeric
antibodies, having a human constant region, should be used in in vitro assays.@ Brief,
page 16.
AIn proceedings before the Patent and Trademark Office, the examiner bears the
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