Appeal No. 2001-2316 Page 7
Application No. 08/187,879
As discussed, supra, the claims are very broad. As the examiner explains
(Answer, page 9), the scope of claim 44 encompasses a method of immunizing
any mammal, including humans, against SIV or HIV by administering any DNA
encoding any SIV or HIV antigen so as to generate a “complete” protective
response against an infection of any SIV or HIV strain. Appellants’
characterization (see e.g., Reply Brief, page 4) of the claimed invention is
consistent with that of the examiner’s. Furthermore, appellants emphasize
(Reply Brief, page 4), the specification’s definition of the term “immunizing,”
arguing, “‘immunizing’ does not refer solely to protection against infection per se
… but rather, refers also to generation of an immune response that lessons or
eliminates manifestations of disease after infection with the infectious agent.”
While the examiner acknowledges that appellants’ characterization of the claimed
invention is correct, the examiner finds (Supplemental Answer, bridging
paragraph, pages 3-4), “the breadth of the DNA immunization methods against
any SIV or HIV infection is not commensurate with the scope of enablement
provided by the specification at the time [the] invention was made (1992).”
III. The state of the prior art:
According to the examiner (Supplemental Answer, bridging paragraph,
pages 5-6)
“on the basis of the evidentiary support disclosed in the prior art of
record, DNA immunization against a naturally occurring HIV or SIV
infection in a mammal (primates such as monkeys and humans) in
1992-1/1994 is not an established but rather an emerging
technology that was still undergoing research for an art-recognized
model and/or efficacy of any protection….
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