Appeal No. 2003-1679 Page 6
Application No. 08/993,010
infection with Type I or Type II H. pylori. As appellants’ point out (Brief, page 11),
Figura makes no such correlation, but instead, expressly states that more studies
are necessary. Furthermore, while both Figura and the examiner direct our
attention to Xiang, Xiang classifies some CagA- and VacA-negative H. pylori
strains as Type I, and others as Type II. See Xiang, page 95, Table 1, strains 32,
33, and 36-43. Accordingly, we agree with appellants’ (Brief, page 13), Xiang
does not provide a clear “correlation between anti-CagA and anti-VacA
antibodies and [T]ype I infection.”
In this regard, we note the examiner’s reference to Xiang, page 97,
second column, third paragraph. Answer, page 19. This portion of Xiang notes
only that “Type II bacteria do not have the gene coding for CagA and do not
produce CagA…,” there is no discussion or recognition that the VacA antigen is
also associated with Type I strains, as is required by appellants’ claimed
invention. With regard to VacA, Xiang discusses the possibility of “intermediate
phenotypes.” See Xiang, page 97, column 2, paragraphs 5 and 6; Answer, page
19. However, Xiang expressly states (first sentence, bridging paragraph, pages
97-98), “[f]rom these observations, we conclude that an understanding of the
linked expression of CagA and VacA must await characterization of the genetic
differences between [T]ype I and [T]ype II bacteria….” Based on this evidence, it
is our opinion that Xiang failed to recognize that CagA and VacA were associated
with Type I H. pylori. We remind the examiner, in determining whether the
claimed invention is obvious, a prior art reference must be read as a whole and
consideration must be given where the reference teaches away from the claimed
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