Appeal No. 2003-0177 Page 5
Application No. 09/231,642
16, lines 27-31. Candidate molecules for the receptor portion of the Eshhar conjugate
are "receptor molecules which take part in signal transduction as an essential
component of a receptor complex, such as receptors which trigger T cells and NK
activation and/or proliferation." Eshhar, page 17, lines 5-8.
Given this disclosure in Eshhar, it was the examiner's responsibility to establish
by factual evidence that IL-13R" is a receptor which meets the signal transducing
requirements of Eshhar. The statement of the rejection in Paper No. 8 does not
discuss this issue in any manner. Rather, this issue was developed through appellants'
arguments over the course of the prosecution of this application. This points out the
danger in the examiner referring to a statement of rejection appearing earlier in the
prosecution instead of ensuring that the statement of rejection appearing in the
Examiner's Answer is up to date and complete and reflects the amendments to the
claims and arguments presented by applicant in the course of the prosecution.
The examiner belatedly attempted to recapture this lost ground by responding to
the arguments set forth in applicants' Appeal Brief. The examiner states at page 5 of
the Examiner's Answer that Willson teaches that IL-13R" is a "high affinity receptor
capable of signal transduction," citing to page 27, lines 8-10 of the reference. The
phrase "signal transduction" does in fact appear at that portion of Willson. However,
appellants responded to the examiner's belated position stating:
[T]he examiner has identified no teaching in Eshhar or elsewhere that IL-
13R" is involved in signal transduction to any of the cells identified by
Eshhar, i.e., in signalling the cell bearing the chimera to generate a
cellular response directed toward the specific antigen encoded by the
chimera in a MHC nonrestricted manner (see Eshhar at page 8. lines 21-
24). To the contrary, Willson teaches that IL-13R is produced by
activated T-cells, but acts on macrophages to induce differentiation and
suppress the production of inflammatory cytokines. In other words, the
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