Appeal No. 2004-0005 Page 5
Application No. 07/644,361
requirements have not been met, we will reverse the rejection of claim 9 under 35
U.S.C. § 112, first paragraph (enablement).1
2. Obviousness.
Appellants state that the claims stand or fall together. Appeal Brief, page 2.
Accordingly, we shall decide the issues raised under 35 U.S.C. § 103(a) in the
examiner’s rejection as they pertain to claim 1 on appeal. 37 CFR § 1.192(c)(7).
The examiner has determined that the Drebin references “show that mab 7.16.4
recognizes [c-erbB-2], [c-erbB-2] is found on breast cancer cells, and the mechanism of
tumor inhibition is through rapid internalization and down-modulation.” Examiner’s
Answer, page 6. The examiner relies upon Aboud-Pirak for its disclosure that
antibodies to epidermal growth factor receptor in combination with the anti-neoplastic
agent cisplatin result in a more effective antitumor composition. The examiner makes
reference to Figure 6 of Aboud-Pirak in support of this finding. Id., page 7. The
examiner concludes that it would have been obvious to one of ordinary skill in the art to
combine the monoclonal antibody 7.16.4 described in the Drebin references with
cisplatin for the expected benefit of creating an anti-tumor composition using higher
anti-tumor effect. Id.
In regard to the claim requirement that the molecule that binds c-erbB-2 protein
induce an increase in phosphorylation of c-erbB-2 protein the examiner states “while the
1 By this action, claim 9 is free of rejection. If appellants intend to permit claim 9
to issue, they and the examiner should ensure that all formal requirements in regard to
deposit of the hybridoma have been met in this application. See 37 CFR §§ 1.801-
1.809.
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