Appeal No. 2004-0291
Application No. 09/091,561
Moreover, even if we assume for the sake of argument that the examiner had
established a prima facie case of lack of enablement, we do not find the examiner has
sufficiently addressed the Declaration argument and evidence made of record by
appellants in support of enablement which would appear to reasonably support
appellants position that the experimentation required to isolate the claimed antibodies
was routine and used methodologies well known in the art.
After evidence or arguments are submitted by the appellant in response to
rejection based on lack of enablement, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration to persuasiveness of
the argument. On balance, we believe that the totality of the evidence presented by the
examiner and appellant weighs in favor of finding the claimed invention is enabled by
the present specification. The rejection of claims for lack of enablement is reversed.
CONCLUSION
The rejection of claims 25-30 and 32-35 under 35 U.S.C. 112, first paragraph for
lack of enablement is reversed.
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