Appeal No. 2002-2281 Page 3
Application No. 08/302,423
by using two plasmid vectors….” Based on this evidence, the examiner
concludes (id.):
Although none of the references teach the recombinant plasmid
construct of Figure 1, the references disclose the V antigen and a
method of immunizing. The production of a protein by a particular
process does not impart novelty or unobviousness to a protein
when the same protein is taught by the prior art, absent evidence to
the contrary or unexpected results. This is particularly true when
the properties of the protein are not changed by the process in an
unexpected manner.
As appellants explain (Brief, page 2), the construct of Figure 1, as referred
to in the claims, “was constructed so as to encode a fusion of lcrV … and the
structural gene for staphylococcal protein A with the exception of the first 67 N-
terminal amino acids of the antigen and the signal sequence plus
immunoglobulin (IgG) binding domains….” In addition, as defined in the
specification (page 10), “[a]s a consequence of this fusion, lcrV lost 201 bp which
thus deleted the first 67 amino acids comprising the N-terminal portion of V
antigen.”
As the examiner admits, “none of the references teach the recombinant
plasmid construct of Figure 1….” Answer, page 5. To the extent that the
examiner would argue (Answer, page 6), that the phrase “a vaccine (or
composition) comprised of an antigen protein” allows for the inclusion of
additional amino acids at the N-terminal portion of the V antigen, and thereby the
claim reads on the full length V antigen, we disagree. In our opinion, the
transitional phrase “comprised of” modifies the vaccine or composition, and not
the antigenic protein encoded by the construct illustrated in Figure 1. Therefore,
while the vaccine or composition may contain additional antigenic proteins, even
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