Appeal No. 2006-0624 Page 11
Application No. 10/096,127
motivated to PEGylate these antibodies to obtain these advantages regardless of
the fact that the other references do not teach that these are problems with
antibodies to IFN gamma.
With respect to appellants arguments that the Ashkenazi references teach
away from the present invention by teaching that gamma interferon need not be
present for an autoimmune disease to cause pathology (Askenazi I, Col. 1, lines
32-33; Col. 3, lines 54-55, 64-67; Col. 5, lines 35-37), and thus there is no reason
to remove it through the use of anti-gamma interferon antibodies, the invention
taught and claimed by Ashkenazi “is based on the premise that the production of
IFN-[gamma] is instrumental in the inflammation, increased expression of HLA-
DR on epithelia, and the change of IgA;IgG ratios in the gut in IBD patients.” Col.
4, lines 18-22. Thus, the invention of Askenazi is premised on the involvement of
IFN gamma, therefore it appears appellants have taken isolated teaching of the
Ashkenazi references and reading them out of context in attempting to attack
those references.
Moreover, with regard to appellants’ argument that the Ashkenazi
references at best teach a method of treating food poisoning by co-administering
a gamma interferon inhibitor and an antibody to IL-2, claim 2 of Ashkenazi I is
drawn to a method of treating Crohn’s disease comprising administering a
gamma interferon inhibitor, and claim 10 specifies that the inhibitor is an
antibody. However, “a presumption arises that both the claimed and unclaimed
disclosures in a prior art patent are enabled,” which appellants “can then
overcome [ ] by proving that the relevant disclosures of the prior art patent are
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