Appeal No. 2002-1291 Page 4
Application No. 08/693,052
to lose their immunizing properties whereas their paramunizing
activities increase.
Id. at 4-5.
DISCUSSION
1. 35 U.S.C. § 112, First Paragraph
Claims 19-31 stand rejected under 35 U.S.C. § 112, first paragraph, on
the grounds that the
specification, while being enabling for compositions comprising
combinations of the attenuated poxvirus strains HP-1, ORF D1701,
MVA, and KP-1, does not reasonably provide enablement for any
and all paramunity inducers comprising a plurality of poxvirus
components obtainable from different poxvirus strains with
paramunizing properties that are encompassed by the claims. The
specification does not enable any person skilled in the art to which
it pertains, or with which it is most nearly connected, to make and
use the invention commensurate in scope with these claims.
Examiner’s Answer, pages 3-4.
According to the rejection, the claims encompass any portion of the
poxviruses, up to and including recombinant poxviruses and freshly isolated
virulent poxviruses. The rejection acknowledges that “[w]hile it may be so that
techniques that are known and conventional can be used to test for the desired
properties, the instant specification does not describe single poxvirus
components other than attenuated poxvirus that have paramunizing properties.”
Id. at 4.
The rejection concludes:
Taking into account the scope of the claims, the amount of
guidance provided, the extent of the written description, the state of
the art at the time the invention was made, and the lack of
predictability in the area of immunology in general and viral
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