Appeal No. 2002-1366
Application No. 09/069,628
We do not find the examiner has presented sufficient evidence to establish a
prima facie case of anticipation. What is missing from the examiner’s analysis and
evidence is a showing that one of ordinary skill in the art would understand that the
monoclonal antibodies of DeGreve which are specific for spore crystal proteins would
be also be specific for a complete or intact Bacillus spore. Though the examiner
argues that “the claims merely require binding to spores of Bacillus” (Answer, page 8),
we find that the present claims, when properly interpreted in view of the specification,
refer to monoclonal antibodies which bind complete Bacillus spores.
The examiner argues that “Appellant has provided no scientific data to support
the position that the monoclonal antibody of DeGreve will not bind to spores.” Answer,
page 8. However, it is the examiner’s burden in the first instance to establish that the
monoclonal antibodies of DeGreve will bind to Bacillus complete spores. This the
examiner has not done, and thus the examiner may not shift the burden of proof to
appellant to provide scientific data to support the position that the monoclonal antibody
of DeGreve will not bind to spores.
The examiner argues that the monoclonal antibodies of DeGreve were selected
for crystal protein specificity by enzyme immunoassay using solubilized Bacillus
thuringiensis protein. Answer, page 10. Thus, the examiner argues the antibodies
were elicited by and selected for ability to bind to biologically active protein which
indicates that they bind to non-denatured protein. Id. The examiner concludes that the
peptide of DeGreve meets the requirement of binding to Bacillus. In our view, the
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