Appeal No. 1999-2634
Application No. 08/108,606
Soderlind or Gregory and Myers in further view of Evans 2. Claim 11 stands rejected
under 35 U.S.C. ' 103 over Evans 1 in view of Svennerholm, and Soderlind or Gregory
and Myers in further view of Evans 3.
In rejecting claims under 35 U.S.C. ' 103, the examiner bears the initial burden
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established when the teachings from the prior art itself would appear to have suggested
the claimed subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d
781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires
that the prior art both suggest the claimed subject matter and reveal a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze
the prior art applied by the examiner in the rejection of the claims on appeal.
Claim 7
According to the examiner, (Paper No. 16, page 4)
Evans et al teach a method for producing an E. coli bacterial strain
expressing colonization factor antigens (CFA/1) for use as an oral vaccine
against enteric infection which has the following steps: (1) growing the E.
5
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