Appeal No. 2001-1576 Page 6
Application No. 08/460,622
Chemical Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir. 1988).
For the forgoing reasons it is our opinion that the examiner failed to meet
her burden1 of providing the evidence necessary to establish a prima facie case
of obviousness. Accordingly we reverse the rejection of claims 17 and 23 under
35 U.S.C. § 103 as obvious over Fischer in view of Etzioni and Sutherland.
Ichiman in view of Sutherland:
According to the examiner (Answer, page 8), “Ichiman et al[.] prepare the
IVIG in a method that is essentially the same as that which is instantly claimed,
i.e., injecting S.[ ]epidermidis antigens into subjects and removing plasma for
Directed Human Immune globulin.”
In our opinion, the examiner has misapprehended the Ichiman reference.
As appellants point out (Brief, page 29);
[t]here is no suggestion in Ichiman for any method of making
Directed Human Immune Globulin by immunizing donors with an S.
epidermidis vaccine and later withdrawing plasma containing anti-
S. epidermidis antibodies. Instead, Ichiman’s study assessed
whether or not normal human sera had sufficient antibody in it to
passively protect mice against challenge by S. epidermidis.
We agree with appellants. Sutherland relied upon by the examiner to teach TCA
extraction does not make up for the deficiency of Ichiman.
Accordingly we reverse the rejection of claims 17 and 23 under 35 U.S.C.
§ 103 as obvious over Ichiman in view of Sutherland.
1 The initial burden of presenting a prima facie case of obviousness rests on the examiner. In re
Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
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