Appeal No. 2003-0480 Page 12
Application No. 08/090245
of ordinary skill in the art, at the time the invention was made, would have easily
concluded that the catalytic properties of a catalytic antibody would be easily
disrupted via the chemical or physical immobilization process.” In support of this
argument, appellants argue (id.):
It is generally accepted in the art that specific binding (e.g., antigen-
antibody binding) allows a certain level of flexibility while chemical
catalysis requires sub-angstom precision in the position of the key
amino acid residues in the catalytic site. The change in the
antibody structure on immobilization can make functional groups
inaccessible, modified, or improperly positioned for the catalysis.
Thus, one of ordinary skill in the art would not have had a
reasonable expectation of success with respect to the use of
immobilized catalytic antibodies as sensors.
We note that in their Reply Brief, appellants’ rely on Stryer2 to shore these
arguments. Notwithstanding appellants’ reliance on Stryer and their argument
that it could in theory be possible to disrupt the catalytically active portion of a
catalytic antibody by immobilization, we are compelled to agree with the
examiner (Answer, page 11) that Schochetman, which issued after the Stryer
publication, discloses that catalytic antibodies can be immobilized on support
materials. As the examiner points out (Answer, page 11), “[a]ppellant’s [sic]
assertion is unaccompanied by evidence….” We remind appellants that
obviousness does not require absolute predictability of success. For
obviousness under §103, all that is required is a reasonable expectation of
success. In re O’Farrell, 853 F.2d 894, 904, 7 USPQ2d 1673, 1681 (Fed. Cir.
1988). In our opinion, the evidence relied upon by the examiner provides a
person of ordinary skill in the art with a reasonable expectation of success.
2 (Stryer) Biochemistry pp. 893-895 (L. Stryer, ed., W.H. Freeman and Company, New York,
1988).
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