Appeal No. 2006-0148 Page 8
Application No. 09/933,309
injection and organ transplant. The examiner has conceded that “transplanting said
organ or grafting said tissue is enabled in humans,” Examiner’s Answer, page 28, so
that aspect of the claimed method would not appear to involve any more than routine
experimentation. The examiner has also conceded that intrathymic injection is known in
the art with respect to laboratory animals (citing Odorico3), although “the thymus in the
rat was not regenerated before the intrathymic injection.” Examiner’s Answer, page 44.
To the extent that the examiner relies on the experimentation involved in
intrathymic injection and organ transplantation as contributing to the conclusion of
nonenablement, we disagree. The examiner has conceded that organ transplantation is
enabled in humans, and the record appears to show that intrathymic injection was
practiced routinely by those skilled in the art.
Odorico, for example, discloses “[i]ntrathymic (i.t.) inoculation of donor
splenocytes . . . after upper median sternotomy and direct visualization of both lobes of
the thymus.” Page 1104 (“Pretransplant recipient preparation”). Similarly, Perico4
reports that “[g]lomeruli were freshly isolated from the right kidney of rat donors. . . . The
purity of the isolated glomeruli was determined microscopically. . . . The glomeruli were
then counted and injected into the thymus of Lewis rats.” Page 1065 (“Isolated
Glomeruli”). Neither reference provides any detailed guidance on how to carry out an
intrathymic injection. Odorico and Perico thus provide evidence that those skilled in the
art did not require detailed guidance in order to carry out an intrathymic injection.
3 Odorico et al., “Promotion of rat cardiac allograft survival by intrathymic inoculation of donor
splenocytes,” Transplantation, Vol. 55, pp. 1104-1107 (1993).
4 Perico et al., “Thymus-mediated immune tolerance to renal allograft is donor but not tissue specific,”
Journal of the American Society of Nephrology, Vol. 2, pp. 1063-1071 (1991).
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