Appeal No. 2002-1299 Page 8
Application No. 08/962,740
Claim 36 stands on a different footing. As appellants explain (Brief, page
6), the combination of references relied upon “fail to suggest that fibroblast cells
from the claimed immortalized cell line are capable of producing influenza virus
at from about 103 to about 106 PFU/ml at about two days after having been
infected.” The examiner responds arguing (Answer, page 6), “[t]he claimed
limitation is merely an inherent property of the cell line and thus the cells of the
Durbin mouse.” The claimed cell line, however, are fibroblast cells. While it may
have been obvious from the combination of references relied upon to establish
an immortalized cell line from a transgenic mouse homozygous for a Stat1 null
allele, there is no motivation in the prior art of record directing one of ordinary
skill in the art to select fibroblast cells. Accordingly, we reverse the rejection of
claim 36 under 35 U.S.C. § 103 as being unpatentable over Durbin in view of
Jallat, Leder and Todaro.
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