Appeal No. 2002-1545 Page 11
Application No. 08/949,757
antibodies immunoreactive with EFS1 or does not react with antibodies induced
to ATCC 202013.” Id. at 28.
We agree that the examiner has not established a prima facie case that
Wessman describes every limitation of the claimed invention. See In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997)
(stating that in order for a prior art reference to serve as an anticipatory
reference, it must disclose every limitation of the claimed invention, either
explicitly or inherently). The examiner acknowledges that Streptococcus and
Enterococcus significantly differ, but contends that they are similar is sharing
cross-reactive antigenic determinants. The rejection, however, provides no
evidence to support that conclusory statement. See In re Lee, 277 F.3d 1338,
1343-44, 61 USPQ2d 1430, 1433-34 (Fed. Cir. 2002) (in reviewing an
obviousness rejection, the court noted that “conclusory statements” as to
teaching, suggestion or motivation to arrive at the claimed invention “do not
adequately address the issue.”).
In addition, we do not agree that the claims read on “any antigen that
contains the sugars in the claimed amounts.” The claims are drawn to an
isolated Enterococcus faecalis antigen, and in addition to containing the sugars
in the claimed amounts, the antigen must be cross-reactive with antibodies
raised to the antigen isolated from the deposited strain, as well as being
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