Appeal No. 2002-0616 Page 5
Application No. 08/693,052
Richards teaches adjuvant effects are additive or synergistic, and
results in the strongest immunization antibody response when
compared to adjuvants being used alone. Masihi also teaches
combining adjuvants resulted in better protection against lethal
influenza challenge, and the effectiveness of MPL adjuvant with
influenza hemagglutinin subunit vaccine. . . . . One skilled in the
art would have been motivated to combine a mineral salt adjuvant
with a second adjuvant for additive and synergistic effect for use in
a vaccine formulation with a reasonable expectation of success.
The use of adjuvants was well-known in the art. Combining
adjuvants for enhancing immunological responses was also well
known in the art, as evidenced by the applied prior art. All claimed
adjuvants were known immunoadjuvants. Absent of evidence to
the contrary, appellants’ claimed invention would have been prima
facie obvious to one of ordinary skill in the art at the time of the
instant invention in view of the teachings of the prior art applied
herein with a reasonable expectation of success.
Id. at 7-8.
Appellants argue there is no motivation provided in the references to
combine a glycosylamide, an octadecyl ester of an aromatic amino acid, or a
lipopeptide adjuvant with a mineral salt adjuvant as required by the claimed
invention, and Stünkel and Penney suggests using the adjuvants they describe
in the place of mineral salt adjuvants. See Appeal Brief, page 7. Thus,
appellants conclude that the invention of the claims is not disclosed or
suggestion by the combination of references relied upon. See id. at 8. We
agree.
“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).
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