Ex Parte MCDONNELL et al - Page 1




                           The opinion in support of the decision being entered today was not written                  
                                   for publication and is not binding precedent of the Board.                          
                                                                                           Paper No. 33                
                         UNITED STATES PATENT AND TRADEMARK OFFICE                                                     
                                                     __________                                                        
                              BEFORE THE BOARD OF PATENT APPEALS                                                       
                                            AND INTERFERENCES                                                          
                                                     __________                                                        
                           Ex parte TIMOTHY J. McDONNELL, STEPHEN G. SWISHER,                                          
                               BINGLIANG FANG, ELIZABETH M. BRUCKHEIMER,                                               
                                  MONA G. SARKISS, LIN JI, and JACK A. ROTH                                            
                                                     __________                                                        
                                               Appeal No. 2003-2091                                                    
                                             Application No. 09/266,465                                                
                                                     __________                                                        
                                                     ON BRIEF                                                          
                                                     __________                                                        
              Before WILLIAM F. SMITH, SCHEINER, and GRIMES, Administrative Patent Judges.                             
              GRIMES, Administrative Patent Judge.                                                                     

                                              DECISION ON APPEAL                                                       
                     This is a decision on appeal under 35 U.S.C. § 134 from the examiner’s final                      
              rejection of claims 1-3, 6, 7, 9-13, 17-21, 23, 29-32, 34, 36, 108, 109, and 115.1  Claims               
              1-3 and 9 are representative and read as follows:                                                        
                     1.    An adenoviral expression construct comprising a first nucleic acid                          
                           encoding a proapoptotic member of the Bcl-2 gene family and a non-                          
                           adenoviral first promoter inducible by a non-adenoviral inducer                             

                                                                                                                       
              1 Claims 1-115 are pending.  Claims 62-67 have been allowed, and the examiner has indicated that         
              claims 4, 5, 8, 14, 16, 22, 24-27, 33, 35, 37, 38, 110, and 114 would be allowable if re-written to eliminate
              their dependence on rejected claims.  See Paper No. 21, mailed June 21, 2002, and the Examiner’s         
              Answer, page 4.  Claims 15, 28, 39-61, 68-107, and 111-113 have been withdrawn from consideration.       
              See Paper No. 21.                                                                                        





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