Appeal No. 2002-1291 Page 6
Application No. 08/693,052
undue amount of experimentation to practice the full scope of the claimed
subject matter. Moreover, the fact that the claims may encompass inoperative
embodiments does not render them non-enabled. See Atlas Powder Co. v. E.I.
Du Pont De Nemours & Co., 750 F.2d 1569, 1576, 224 USPQ 409, 413 (Fed.
Cir. 1984), In re Angstadt, 537 F.2d 498, 504, 190 USPQ 214, 218 (CCPA
1976).
2. 35 U.S.C. § 102(b)
Claims 19, 20, 21, 27 and 28 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Mayr II. Claim 19 is treated as the representative claim, as
the claims stand or fall together. See Appeal Brief, page 7.
According to the rejection:
Mayr [II] disclose[s] administering the combination of ORF virus
strain D1701, attenuated by 135 passages in secondary cell
cultures of embryonic sheep kidneys and subsequently grown in
bovine embryo lung cells (see the Summary, page 550), and the
paramunity inducer DUPHAMEN®, which is disclosed in the instant
specification as being attenuated avipox virus strain HP-1, as a
sheep vaccine (see the Summary, page 550, pages 545-546 and
the Abstract, for example.) Although it is recognized that Mayr [II]
administered the ORF virus D1701 for the purpose of inducing
specific immunity in sheep, and administered it in combination with
a paramunity inducer, the composition of Mayr [II] is deemed to
anticipate the claimed composition since it combines two of the
same poxvirus strains that are encompassed by the instant claims
and that are specifically recited in claim 21, regardless of the
purpose for which Mayr [II] intended it or the reason Mayr [II]
combined the two strains. The specification at page 9 describes
procedures for attenuation of ORF virus D1701 for use as a
paramunity inducer that reasonably appear to be equivalent to the
attenuation procedures described by Mayr [II]; further, the
specification at page 4, lines 24-28, points out that attenuation by
multiple passages in cell cultures causes immunizing properties to
decrease and paramunizing properties to increase. Consequently,
the claim limitations are met by the combination of attenuated ORF
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