Appeal No. 2002-1740
Application No. 08/447,398
fractionated and dialysed from other cellular components. Pal, page 4782, column 2.
The EP fraction was found to induce protective immunity. See, Abstract. Thus, Pal
suggests the use of purified subunit vaccines from extracellular proteins of
Mycobacterium tuberculosis. Borremans further purified and characterized a 32 kD
extracellular protein from M. tuberculosis, and found the 32 kD extracellular protein to
be a major stimulant of cellular and humoral immunity against mycobacterium. We find,
the cited references, in combination would have reasonably suggested the claimed
vaccinating agent, and provided a reasonable expectation of success to one of ordinary
skill in the art of obtaining protective immunity from a 32 kD extracellular protein as
described by Borremans, in purified form, as suggested by Pal.
In response, appellant summarily argues that the examiner has not set forth a
prima facie case of obviousness, as the cited references, alone or in combination, “fail
to teach or describe that the 32 kD protein could be utilized as a vaccinating agent, or to
provide a reasonable expectation of success to one of ordinary skill in the art that such
an agent could be made and utilized to provide a protective immune response.” Brief,
page 17.
However, where the prior art gives reason or motivation to make the invention of
representative claim 47, the burden then falls on an appellant to rebut that prima facie
case. Such rebuttal or argument can consist of any other argument or presentation of
evidence that is pertinent. In re Dillon, 919 F.2d 688, 692-93, 16 USPQ2d 1897, 1901
(Fed. Cir. 1990) (en banc), cert. denied, 500 U.S. 904 (1991).
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