Appeal No. 2005-1504
Application No. 09/820,099
One of ordinary skill in the art would have been motivated to and had a
reasonable expectation of success to have used the complex comprising
monomeric IgA linked to a second antibody (a bispecific agent or multispecific)
for the elimination of a target cell or antigen because Shen et al[.] teach Fc"Rs
are capable of interacting with IgA in the form of monomers and binding induces
phagocytosis . . . and Shen et al[.] teach that the binding agent binds with the
same affinity as monomeric IgA and that the binding agent does not inhibit the
binding of IgA [Answer, p. 4].
It is well established that the examiner has the initial burden under 35 U.S.C.
§ 103 to establish a prima facie case. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1471-72, 223 USPQ 785,
787-88 (Fed. Cir. 1984). To that end, it is the examiner’s responsibility to show that
some objective teaching or suggestion in the applied prior art, or knowledge generally
available in the art, would have led one of ordinary skill in the art to combine the
references to arrive at the claimed invention. Pro-Mold & Tool Co. v. Great Lakes
Plastics, Inc., 745 F.3d 1568, 1573, 37 USPQ2d 1626, 1629 (Fed. Cir. 1996).
Here, we find that the examiner has not provided any reason based on the
applied prior art as to why the claimed invention would have been obvious to one of
ordinary skill in the art. That is, if we look only at the subject matter recited in claim 1,
we find that it is directed to a method of administering a complex comprising (1)
monomeric IgA or a portion thereof which binds to Fc"RI; and (2) a portion which
specifically binds to a target cell or antigen. We agree with the examiner that Shen
teaches a bispecific complex having the second portion; i.e., a complex having a portion
which specifically binds to a target cell or antigen (page 1, lines 29-32); however, we do
not find that Shen teaches or suggests that the complex comprise monomeric IgA, or a
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