Appeal No. 2005-1511
Application No. 09/879,398
It is well established that the examiner has the initial burden under § 103
to establish a prima facie case of obviousness. 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., 75 F.3d 1568,
1573, 37 USPQ2d 1626, 1629 (Fed. Cir. 1996). This the examiner has not done.
Although Falkenburg and Lamb disclose different aspects of the claimed
method of treating ALL patients, we agree with the appellants that neither these
nor any of the other cited references teaches or suggests the present invention.
Lamb discloses administering γδ+ T cells derived from an allogeneic donor to an
ALL patient, but we do not find any suggestion therein to first prime the donor
cells with irradiated leukemia cells derived from the patient. Falkenburg
discloses irradiating leukemia cells and culturing them with CTL (cytotoxic T
cells) from a donor, but the reference does not mention the use of γδ+ T cells.
To the contrary, as pointed out by the appellant, the CTL lines taught by
Falkenburg “were phenotyped with antibodies to CD2, CD3, CD4, CD8 and
CD56 (see page 307), indicating that they were expecting to generate αβ+ T
cells.” Brief, p. 12. Thus, on this record, the only suggestion we find of culturing
an ALL patient’s own leukemia cells which have been irradiated ex vivo with an
enriched population of a donor γδ+ T cells and to administer said T cells said ALL
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