Appeal No. 2004-0005 Page 11
Application No. 07/644,361
Example 8D establishes that c-erbB-2 was phosphorylated as opposed to other cell
surface receptors such as ErbB3 and/or ErbB4.
Finally, another issue which appellants and the examiner need to consider if
prosecution is resumed on this subject matter is the issuance of Shawver, claims 25
and 27 of which read as follows:
25. A drug combination cytotoxic to tumor cells which express c-erbB-2
protein, comprising synergistically effective amounts of (a) an antiestrogen
and (b) an antibody, or divalent fragments thereof, that binds specifically
to said c-erbB-2 protein on said tumor cells, wherein said antibody, or
divalent fragments thereof, causes internalization of said c-erbB-2 protein.
27. A drug combination of claim 25, wherein said antibody induces an
increase in phosphorylation of said c-erbB-2 protein.
Since the antiestrogen required by claims 25 and 27 of Shawver is an anti-
neoplastic agent as required by claim 1 on appeal, it appears that the claims in this
application, including claim 9, should be rejected on the judicially created obviousness-
type double patenting grounds. In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir.
1998).
The examiner’s decision is affirmed-in-part.
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