Appeal No. 1999-2634
Application No. 08/108,606
which was CFA/I positive evoked partial protection against challenge with CFA
homologous as well as CFA-heterologous ETEC strains. Because Svennerholm
suggests that colicin treatment is an alternative method to mild formalin treatment to
inactivate ETEC bacteria, it would have been obvious to one of ordinary skill in the art
at the time of the present invention to substitute mild formalin treatment for the colicin
treatment to inactivate CFA positive ETEC cells with an expectation of success that it
would provide for a protective oral vaccine. We also find Evans 1, 2, Soderlind and
Gregory to be cumulative and supportive of the efficacy of formalin treated ETEC
vaccines.
Where the prior art, as here, gives reason or motivation to make the claimed
invention, the burden then falls on an appellants to rebut that prima facie case. Such
rebuttal or argument can consist of any other argument or presentation of evidence that
is pertinent. In re Dillon, 919 F.2d 688, 692-93, 16 USPQ2d 1897, 1901 (Fed. Cir.
1990) (en banc), cert. denied, 500 U.S. 904 (1991).
In response to the examiner=s arguments, appellants argue (Brief, pages 7-8)
that ASvennerholm clearly indicate that efficacious anti-ETEC vaccines were still
theoretical. ... [A]ccordingly, one of ordinary skill in the art would have recognized that
success could only be measured by clinical data which had not yet been acquired at the
date of publication. Thus, appellants argue that Svennerholm provides no reasonable
expectation of success of obtaining an efficacious ETEC vaccine. Brief, page 8.
In response, it is the position of the examiner that (Answer, pages 5-6)
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