Appeal No. 2001-2347
Application No. 08/251,574
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). A prima facie case of obviousness is
established when the teachings from the prior art itself would appear to have suggested
the claimed subject matter to a person of ordinary skill in the art. In re Bell, 991 F.2d
781, 783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993). An obviousness analysis requires
that the prior art both suggest the claimed subject matter and reveal a reasonable
expectation of success to one reasonably skilled in the art. In re Vaeck, 947 F.2d 488,
493, 20 USPQ2d 1438, 1442 (Fed. Cir. 1991). With this as background, we analyze
the prior art applied by the examiner in the rejection of the claims on appeal.
According to the examiner, “[b]oth Huston and Rodwell teach that
immunoconjugates ... of antibody and biological response modifiers were known at the
time of the invention. Huston et al teach that [sic] a single chain multifunctional
biosynthetic protein, which comprises a biosynthetic antibody binding site molecules
[sic] BABS and a protein which is an effector protein having a biological activity to effect
a biological function.... Huston teach the BABS to be antibodies or antigen binding
fragments.” Answer, page 4.
Rodwell et al teach antibody conjugates whereby bioactive and cytotoxic
agents are targeted to tumour sites, and that these were desirable for
targeting biological agents to specific sites. Rodwell et al also teach
working protocols for making these conjugates. While the above two
references essentially teach the making and use of antibody-conjugates of
virtually any specificity, i.e. a tumour, and that these were known and
routine in the prior art, they do not specify the antibodies were directed to
the 15A8 or ZME-018 antigens.
Id.
In addition, the examiner argues (Answer, page 4):
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