Appeal No. 2002-1358
Application No. 09/467,903
of anti-rat erythrocyte F(ab')2-coupled liposomes with erythrocytes in whole blood.
Singhal, page 72-74. Traut describes the reagents and methods used in cross-linking,
using thiolation, of a protein having no thiol group. Brief, page 7. Thus, appellants
argue that the state of the art generally provides those of ordinary skill in the art an
indication that it is customary and routine to make and use antibody fragments, such as
Fab' and F(ab')2, in targeting therapies.
The examiner responds, arguing, “[r]egarding appellants comments in pages 8
and 9 of the instant Brief, appellants are arguing why the instant invention is obvious in
view of the specification and prior art. There is no disclosure in the specification of the
term 'antibody fragment'. There is no disclosure in the specification of the use of F(ab')2
in the claimed invention. Appellants arguments are essentially drawn to the issue of
why the claimed invention is obvious based on the disclosure of the specification and
prior art.” Answer, page 7. The examiner relies on the legal precedent of Lockwood v.
American Airlines Inc., 107 F.3d 1565, 1571-1572, 41 USPQ2d 1961, 1966 (Fed. Cir.
1997), for the proposition that the written description of an invention extends only to that
which is disclosed in the prior application, and does not extend to subject matter which
is not disclosed, but what is obvious in view of what is expressly disclosed. Answer,
pages 7-8.
We do not agree with the examiner that the facts of the case before us suggest
an attempt of appellants to claim what is obvious in view of what is expressly disclosed
in the specification, as in Lockwood.
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