Appeal No. 2001-2379 Page 6
Application No. 08/931,666
the cell.” Examiner’s Answer, page 6. The examiner based the latter assertion
on Triguero’s statement that the
transport process is believed to be made up of three steps (11): (i)
absorptive-mediated endocytosis at the lumenal side of the
capillary; (ii) diffusion through the 0.3 µm of endothelial cytoplasm;
and (iii) absorptive-mediated exocytosis at the antilumenal
membrane of the brain capillary.
Pages 4764-4765 (citation omitted).
The examiner relied on Barone and Abrams for their disclosures of the
HIV-1 Tat protein and methods of making monoclonal antibodies, respectively.
He concluded that it would have been obvious
to use the teachings of Barone et al. and Abrams et al. to produce
human monoclonal antibodies which immunologically bind to tat
protein of HIV and then to cationize the anti-tat antibodies to
enhance the cellular uptake of the anti-tat antibodies according to
the teachings of Triguero et al. One of ordinary skill in the art would
have been motivated by the long felt need for improved therapeutic
agents for treating HIV infection and would have had a reasonable
expectation of success since tat is an intracellular protein critical for
the replication of HIV virus and, thus, a target for therapeutic
intervention, and since Triguero et al. established that cationization
of antibodies enhanced cellular uptake of the antibodies.
Examiner’s Answer, page 7.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of coming forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1993). “[A] proper analysis under § 103 requires, inter alia, consideration of two
factors: (1) whether the prior art would have suggested to those of ordinary skill
in the art that they should make the claimed composition or device, or carry out
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