Appeal No. 2001-2347
Application No. 08/251,574
the time of the invention to be effectively used to treat cancer cells when given with or
without tumour specific antibodies.
Appellants have not come forth with evidence to support his position that those of
ordinary skill in the art would still find uncertainty and unpredictability in choosing an
appropriate linker sequence which would not interfere with the functionality of the
conjugate, in view of the detailed disclosure in Huston as to how to select a linker so as
not to affect the function of the components of the conjugate and how to avoid
inoperable embodiments. Such arguments of counsel cannot take the place of
evidence. In re DeBlauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984), In
re Payne, 606 F.2d 303, 315, 203 USPQ 245, 256 (CCPA 1979).
Thus, we find that the examiner’s evidence supports a prima facie case of
obviousness, which has not been sufficiently rebutted by appellants with appropriate
evidence.
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