Appeal No. 2002-1291 Page 7
Application No. 08/693,052
virus strain D1701 and DUPHAMEN®, which is attenuated avipox
virus strain HP-1, as taught by Mayr [II].
Examiner’s Answer, pages 7-8.
Appellant argues that Mayr II teaches the combination of a vaccine, the
ORF virus D1701, and a paramunity inducer, Duphamun®, and thus the ORF
virus strain used in Mayr II cannot be considered as having paramunizing
properties as it is used only in vaccinating the animals. Therefore, appellant
asserts, Mayr II cannot anticipate the claims, as it does not teach a paramunizing
composition comprising a plurality of poxvirus components. See Appeal Brief,
page 11. Appellant contends that the poxvirus components of the present
invention have lost their immunizing properties. See Appeal Brief, page 12.
Finally, appellant notes that the European Patent Office issued a patent after
considering the Mayr II reference.
We acknowledge that in order for a prior art reference to serve as an
anticipatory reference, it must disclose every limitation of the claimed invention,
either explicitly or inherently. See In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1432 (Fed. Cir. 1997). But as noted by the examiner, claim 19 is
drawn to a composition, and Mayr II teaches a composition that reads on the
claimed composition, i.e., a composition comprising the parapox virus ORF
D1701 and the avipox pox virus HP-1. “[W]hen the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.” In re Spada, 911 F.2d
705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). “When the claimed
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