Appeal No. 2002-1545 Page 16
Application No. 08/949,757
2-deoxy-glucose and rhamnose, and also comprises glucose and 2-acetamido-2-
deoxy-glucose (galactosamine).
Appellants argue that Aluyi describes the chromatographic analysis of
total sugar content for seventy strains of viridans streptococci, and thus do not
describe an isolated antigen. Appellants argue further that Aluyi describes
strains of viridans-group streptococci, which does not include the enterococci.
See Appeal Brief, page 16. We agree.
The examiner responds by arguing that “the instantly claimed invention
recites open language and would permit the presence of other sources of
carbohydrate antigen.” Examiner’s Answer, page 32. The examiner asserts
further that “[t]he antigen of Aluyi [ ] has the claimed sugars in the recited ratio
and would inherently anticipate the claimed antigen.” Id.
Again, we do not agree with the examiner’s interpretation that the claim
reads on the presence of other sources of carbohydrate antigen for the reasons
set forth supra with respect to the rejection over Pritchard. In addition, as we
stated with respect to the rejection over Wessman, 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
consistent with the H1-NMR analyses of the antigen provided by the
specification.
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