Appeal No. 1998-0667 Page 13
Application No. 081280,306
which contain major and minor antigens which can deliver functional biological material
(Slilaty), a,capsids formed only from the major capsid antigen as required by the
claims. Absent a fact-based explanation from the examiner, we do not find that one of
ordinary skill in the art would have had a reasonable expectation of success in
achieving the claimed invention based upon the teachings of Slilaty and Lowy.
The remaining § 103 rejections are premised upon Sandig. As explained above,
Sandig expressly teaches that polyoma virus pseudocapsids formed from the major
capsid antigen did not permit the exogenous DNA to be taken up by a cell and be
biologically functional in that cell. The examiner relies upon the disclosure of Lowy of
empty human papilloma virus capsids composed entirely of the major capsid antigen.
But again, Lowy does not describe the use of those capsids for transferring exogenous
materials into a cell. Accordingly, we do not find that the combination of Sandig and
Lowy establishes the requisite reasonable expectation of success needed in order to
arrive at a proper conclusion of prima facie obviousness.
The rejections under 35 U.S.C. § 103(a) are reversed.
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