Appeal No. 2004-0005 Page 7
Application No. 07/644,361
We have carefully considered appellants’ arguments, Alberts and Hudziak ‘692
but do not find that they constitute a sufficient rebuttal of the examiner’s prima facie
case of obviousness.
We first note that appellants have overstated the disclosure of Hudziak ‘692. To
put the statement in Hudziak ‘692 appellants rely upon in proper context, we reproduce
that portion of the reference that contains the statement:
While not wishing to be constrained to any particular theory of
operation of the invention, it is believed that the antibodies inhibit growth
factor receptor biological function in one or more of the following ways:
(a) The antibodies bind to the extracellular domain of the receptor and
inhibit the ligand from binding the receptor;
(b) The antibodies bind the ligand (the growth factor) itself and inhibit the
ligand from binding the receptor;
(c) The antibodies down regulate the growth factor receptor;
(d) The antibodies sensitize tumor cells to the cytotoxic effects of a
cytotoxic factor such as TNF-";
(e) The antibodies inhibit the tyrosine kinase activity of the receptor.
Hudziak ‘692, page 9, lines 17-29.
As seen, Hudziak ‘692 states as only one of five possible theories of operation
that the antibodies inhibit the tyrosine kinase activity of the receptor of that invention.
Appellants have not established that any of the specific antibodies described in the
reference do in fact inhibit the tyrosine kinase activity of the receptor.
Appellants’ reliance upon Hudziak ‘692 can also be seen as a red herring since
the examiner relies upon the antibodies described in the Drebin references in support of
the prima facie case of obviousness, not those described in Hudziak ‘692. As
appellants and the examiner appreciate, the Drebin references do not address whether
any of the antibodies described therein do or do not inhibit the tyrosine kinase activity of
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007