Appeal No. 1998-0667 Page 12
Application No. 081280,306
The examiner relies upon Lowy for its teaching that human papilloma virus
capsid is larger in size than polyoma virus capsid. The examiner relies upon Lowy's
teaching of a method for producing empty human papilloma virus capsids composed
entirely of a major capsid antigen. However, the examiner does not assert and it does
not appear that Lowy teaches that the empty human papilloma virus capsids which are
composed entirely of the major capsid antigen are described as being useful for
transferring exogenous materials into cells.
The examiner reasons it would have been obvious to one of ordinary skill in the
art to modify the method of Slilaty by replacing the polyoma pseudocapsid with the
human papilloma virus pseudocapsid composed entirely of the major capsid antigen
since "one would have expected that more DNA could be packaged in the [human
papilloma virus] pseudocapsid" (Examiner's Answer, page 9). However, what is
missing from the examiner's position is an explanation why one of ordinary skill in the
art would have expected pseudocapsids composed entirely of the major capsid antigen
associated with exogenous material would permit the exogenous material to be taken
up by a cell and be biologically functional in that cell. Viewing the two references relied
upon by the examiner, only Slilaty is directed to a method of transferring material into a
host cell. However, the pseudocapsids of Slilaty are not composed entirely of major
capsid antigens required by the claims on appeal. While one perhaps would assume
that the larger capsid of Lowy may be able to "package" more DNA, it is unclear from
the record why one would expect the larger Lowy capsid to be able to deliver such DNA
so that it is biologically functional in a cell. From these two references, it is only capsids
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