Appeal No. 2001-2379 Page 5
Application No. 08/931,666
present specification shows, however, that native antibodies do not have the
same Tat-inhibitory effect as cationized antibodies. See, e.g., Table 1. Thus, it
is unclear why those of skill in the art would have expected the Fahey’s results
(which were apparently obtained using native antibodies) to be predictive of the
results expected for the claimed method of using cationized antibodies.
The examiner’s reliance on Fox also appears to be misplaced. The
examiner cites Fox as discussing “[t]he failure of all immune-system-boosting
therapies for treating AIDS.” Examiner’s Answer, page 5. The claimed methods,
however, to not rely on boosting the immune system. The claimed methods
involve administration of exogenous, cationized antibodies. Thus, it is unclear
why those of skill in the art would have found Fox’s results predictive with respect
to the instant claims.
The examiner has not shown, by a preponderance of the evidence, that
practicing the claimed methods would have required undue experimentation. We
therefore reverse the rejection under 35 U.S.C. § 112, first paragraph.
2. Obviousness
The examiner also rejected all of the claims as obvious over the prior art.
The examiner cited Triguero as teaching production of cationized antibodies and
transport of such antibodies across the blood-brain barrier. According to the
examiner, Triguero “establishes that those skilled in the art were well aware that
1) cationization of proteins enhanced cellular uptake, and 2) that during at least
part of this cellular uptake process, the proteins diffused through the cytoplasm of
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