Appeal No. 1999-1433
Application 08/453,852
p. 7. As indicated above, we find the black box model to be inappropriate. On this
record, the only place where we find a suggestion (i) that TNF is an adjuvant, and (ii) to
administer TNF in combination with a non-tumor substance in an animal in order to
stimulate a humoral or cellular immune response to said substance, is in the appellant’s
specification. Accordingly, we again agree with the appellants that the examiner has
relied on impermissible hindsight in arriving at her conclusion of obviousness. In re
Gorman, 933 F.2d at 987, 18 USPQ2d at 1888; Interconnect Planning Corp. v. Feil, 774
F.2d at 1138, 227 USPQ at 547; W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d at
1553, 220 USPQ at 312-313.
Therefore, Rejection V is reversed.
C. The rejections of claims 3, 6, 7 and 11 in further view of Riggs and
Cohen.
The examiner urges that claims 3, 6, 7 and 11 would have been further obvious in
view of the teachings of Riggs and Cohen. Answer, pp. 8-10.
With respect to the prior art we point out that the examiner merely states that the
“teachings of Riggs et al. are discussed above.” Answer, p. 8. We have carefully
reviewed the Examiner’s Answer, but we find no discussion of the Riggs patent. As to
Cohen, we find that the patent discloses the preparation of vaccine compositions
comprising the Herpes simplex virus (HSV) envelope glycoprotein, gD. Cohen, the
abstract; col. 1, lines 17-25; col. 6, line 27- col. 7, line 24. Cohen further discloses that
the vaccine compositions can include an adjuvant such as “Freund’s Complete Adjuvant,
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