Appeal No. 2004-1930 Page 3
Application No. 08/940,544
Examiner’s Answer, page 3.
We recognize that in order for a prior art reference to serve as an
anticipatory reference, it must disclose every limitation of the claimed invention,
either explicitly or inherently. See In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1432 (Fed. Cir. 1997). In this case, Eshhar specifically teaches a
chimeric gene that comprises a first gene segment that encodes the variable
regions of the heavy and light chains of a specific antibody, linked to a flexible
linker, and a second gene segment that comprises a DNA sequence encoding a
partial or entire transmembrane domain, as well as the extracellular domain of a
lymphocyte–triggering molecule corresponding to a lymphocyte receptor or part
thereof. See Eshhar, page 7, lines 27-35. The reference teaches further that the
lymphocyte-triggering molecule may be CD28. See id. at 8, lines 30-36; see also
page 18, lines 9-13. Thus, we find that Eshhar teaches all of the limitations of
claim 1, and the rejection is affirmed.
Appellants argue that “Eshhar does not teach a specific embodiment
within the scope of the claims.” See Appeal Brief, pages 3-4. Appellants assert
that Eshhar provides “[a] lengthy list of lymphocyte-signalling domains . . . that
includes TCR signalling components, and also other lymphocyte-signalling
chains, which are listed as zeta and eta chains of CD3, the gamma chain of the
FcγR and FcεR, the α, β, and γ chains of the IL-2R or any other lymphokine
receotpr [sic], CD16 α chain, D2, and CD28.” Id. at 4. According to Appellants,
the examples specifically disclosed by Eshhar do not reflect the breadth of the
laundry list of receptor types. See id.
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