Appeal No. 2001-2316 Page 10
Application No. 08/187,879
evidence showing a reasonable extrapolation from the disclosure any DNA
vaccine/immunization or protective effect.” In this regard, we note that example
14 of appellants’ specification is prophetic in nature and does provide any
evidence supporting appellants’ claimed invention. Instead, according to
appellants (Brief, page 5), example 14 simply “sets forth how to conduct a
vaccine trial to assess efficacy of the constructs.” In our opinion, the Robinson
declaration also does not support the full scope of appellants’ claimed invention.
According to the Robinson declaration (¶ 3), “[t]he protocol for the trial is similar
to that described in the [s]pecification at [e]xample 14.” However, Robinson
declares (¶ 5, emphasis added), “[t]he DNA immunizations did not prevent
infection or protect against CD4+ cell loss. … Notably, however, viral loads were
reduced to the chronic level over a shorter period of time in the vaccinated
animals…, than in the control animals.”
At best, the Robinson declaration, when viewed in light of appellants’
specification, provides evidence that the claimed invention is capable of reducing
viral loads. However, in our opinion, demonstrating that viral loads can be
reduced is not sufficient to enable the entire scope of appellants’ claimed
invention which 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. As the examiner explains (Answer, bridging sentence,
pages 10-11):
neither the application, nor any of the Declaration[s] of record, nor
any prior art of record, nor any art of record even five years after
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