Appeal No. 1998-0667 Page 11
Application No. 081280,306
material can be enclosed within an empty pseudocapsid or otherwise
wrapped up with the capsid antigen.
Specification, page 5.
These two passages provide a clear objective distinction between the work described in
Sandig and the present invention. As defined by appellants, the exogenous material
associated with the pseudocapsid of claim 29 is protected by the pseudocapsid, i.e.,
"enclosed w~ithin an empty pseudocapsid or otherwise wrapped up with the capsid
antigen," while that of Sandig was adsorbed to the pseudocapsid surfaces.
On this record, it is clear that the pseudocapsids described in Sandig relied upon
by the examiner do not allow for the transfer of the exogenous material into a host cell
so that the materials taken up by the cell is biologically functional in the cell as required
by the rejected claims
The rejection under 35 U.S.C. § 102(b) based upon Sandig is reversed.
3. Obviousness reiections.
The first obviousness rejection is premised upon the disclosures of Slilaty and
Lowy. At page 8 of the Answer, the examiner states that Slilaty describes a method of
using polyoma virus pseudocapsids to transfer DNA in the cultured rat cells. However,
the pseudocapsids of Slilaty are not composed entirely of major capsid antigen. The
examiner makes note of the teaching in Slilaty that a limitation of the polyoma virus
pseudocapsid as a gene transfer agent is its small size which lirr~its the amount of DNA
which can be packaged.
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