Appeal No. 2001-1410
Application No. 08/472,630
claimed antibody specifically binds to Streptococcus pyogenes DNase enzyme.
The burden is on the examiner to make a prima facie case of anticipation, and the
examiner may meet this burden by demonstrating that the prior art teaches the claimed
elements. The findings of fact underlying an anticipation or obviousness rejection, as
well as the conclusions of law, must be made in accordance with the Administrative
Procedure Act, 5 U.S.C. 706 (A), (E) (1994). See Zurko v. Dickinson, 527 U.S. 150,
158, 119 S.Ct. 1816, 1821, 50 USPQ2d 1930, 1934 (1999). In addition, in order for
meaningful appellate review to occur, the examiner must present a full and reasoned
explanation of the rejection. See, e.g., In re Lee, 277 F.3d 1338, 1342, 61 USPQ2d
1430, 1432 (Fed. Cir. 2002).
In the present case, we do not find that the examiner has presented sufficient
evidence that the antibody described by Toth specifically binds to Streptococcus
pyogenes DNase enzyme. What is missing from the examiner's analysis is what, if
any, specific relationship there is between the Group A Streptococcus DNase B
described by Toth and antibodies generated thereto, and the claimed Streptococcus
pyogenes DNase B. The examiner must support any such relationship with specific
evidence, such as a publication which indicates that Streptococcus pyogenes DNase B
shares a similar structure to other Group A Streptococcus DNase B. In addition, the
examiner has not established that enzyme which was used to prepare the antibody of
Toth was substantially free of mitogenic activity, as claimed.
In view of the above, we find that the examiner has not established a prima facie
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