Appeal No. 2002-1545 Page 13
Application No. 08/949,757
The examiner responds by arguing that “the claimed antigen is not
required to be a Group D streptococcal antigen,” and that “[t]he claimed invention
is not drawn to a lipoteichoic acid antigen but to a carbohydrate antigen.”
Examiner’s Answer, page 28. The examiner concludes that “[a] side by side
comparison has not been made of record to show that the antigen of the prior art
does not induce antibodies immunoreactive with EFS1 or does not react with
antibodies induced to ATCC 202013 (definitions of the claimed invention).” Id. at
29.
The rejection of claims 1, 4, 27 and 35-38 under 35 U.S.C. § 102(b) as
being anticipated by Moreau is reversed for the same reasons set forth supra
with respect to the rejection over Moreau. Moreover, because the examiner has
not met the burden of establishing a prima facie case that the antigen of the prior
art appears to be the same as the claimed antigen, appellants do not need to
come forward with a side by side comparison to establish that the antigens are
different. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed.
Cir. 1990).
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Pritchard.
According to the rejection:
Pritchard [ ] discloses Streptococcus strains which upon purification
of the surface antigen resulted in a composition which contains
rhamnose/N-acetylglucosamine (analogous to 2-acetamido-2-
deoxy-glucose) in a 2:1 molar ratio, as well as comprised glucose
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