Appeal No. 2005-1504
Application No. 09/820,099
portion thereof. To the contrary, although Shen recognizes that the receptor for IgA,
Fc"R, is capable of binding monomeric IgA (p. 3, lines 28-29) and that “[b]inding of IgA
to cells bearing these receptors induces a variety of effector functions, such as
phagocytosis, antibody dependent cellular cytotoxicity (ADCC), inflammatory mediator
release, lysozyme production, and superoxide anion production” (id., lines 29-32);
however, Shen teaches using other binding agents whose binding is not blocked by IgA.
For example, Shen discloses that “a preferred binding agent binds to a site on an IgA
receptor which is different from the binding site for IgA. . . . [such as] monoclonal
antibodies specific for different portions of the receptor” [emphases added]. Shen, p. 4,
lines 29-33; see also, p. 5, lines 10-12, lines 21-23 and lines 29-34. Shen further
discloses that the “preferred binding agents of the invention bind to the Fc"R with a
higher affinity than a type of IgA” [emphasis added]. Id., p. 6, lines 4-5. Thus, given
these and similar teachings found throughout the publication, we agree with the
appellant that Shen “teaches away” from using monomeric IgA.
Accordingly, it reasonably follows that we do not find that Shen would have
suggested to one of ordinary skill in the art a complex comprising monomeric IgA and a
compound which binds to a target cell or antigen. Rather, on this record, the only
suggestion we find to administer such a complex is in the appellant’s disclosure. Thus,
we find that the examiner has engaged in impermissible hindsight to arrive at the
conclusion that the claimed invention would have been obvious over Shen and
Monteiro. In re Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992);
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