Appeal No. 2002-1740
Application No. 08/447,398
Thus, we do not find the examiner has met his burden and established a
reasonable basis to question the enablement provided for the claimed invention. Nor
has the examiner provided any evidence to support the position that the specification
does not reasonably provide enablement for immunizing all other mammalian hosts
susceptible to disease caused by any pathogen from the genus Mycobacterium using
purified extracellular proteins from any other species of Mycobacterium.
The rejection of claims 47-67 and 70 for lack of enablement is reversed.
35 U.S.C. § 103(a)
Claims 47-49, 52, 53, 55, 57, 59, 60, 62 and 63 stand rejected under 35 U.S.C. §
103(a) as unpatentable in view of Pal in light of Borremans, Salata, Wallis, Zhang,
Munk and Verbon.
According to appellant, the claims stand or fall together with respect to each
rejection. Brief, page 4. Since the individual claims are not argued, we decide this
appeal with respect to the prior art rejection on the basis of claim 47, as representative
of claims 47-49, 52, 53, 55, 57, 59, 60, 62 and 63. 37 CFR §1.192(c)(7) (2000).
It is the examiner’s position that Pal teach a vaccinating agent for use in
promoting an effective immune response in a mammalian host against an infectious
pathogen from the genus Mycobacterium (M. tuberculosis) comprising at least one
majorly abundant extracellular product of M. tuberculosis. Answer, page 7. According
to the examiner Pal teach the “presence of the extracellular products of $ 30,000
10
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