Appeal No. 2002-1562
Application No. 09/183,454
may be selected as targets by appropriate selection of the organic moiety.
Upon review of the prior art references, we do not find the examiner has
provided sufficient evidence to support a prima facie case of obviousness. When the
claims are read in view of the specification, they require the treatment of living
pathogens, such as viruses, fungi, bacteria or prions.
While Osther discloses the use of labeled monoclonal antibodies as an in vitro
diagnostic for HIV infection (Osther, column 4, line 54 to column 5, line 60), Osther
does not disclose or enable the use of radiolabelled monoclonal antibodies for the
treatment of HIV infection in vivo. Moreover, while Osther does disclose that antibodies
described therein may be used as an immunotherapeutic (Osther, column 6, line 20 to
column 11, line 20), there is no disclosure that the antibodies used in immunotherapy
are radiolabeled.
Nor do we find that Li or Lewis make up for the deficiencies of Osther. What is
missing from the examiner’s analysis is why one of ordinary skill in the art with
knowledge of radiopharmaceuticals for the treatment of tumors and cancer in vivo,
would have been motivated to substitute the radiolabel of such radiopharmaceuticals,
for the radiolabel of a composition for the in vitro diagnosis of HIV infection as
described in Osther. Nor is there evidence of record of an expectation of success that
radiolabeled conjugates for the treatment of tumors can be substituted with a pathogen-
targeting organic moiety and successfully used for the treatment of pathogens, as
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