Appeal No. 2006-0735
Reexamination Control No. 90/006,036
The Hu reference
The examiner has rejected claims 1-4, 6-10, 12, and 13 under 35 U.S.C. § 102(e)
as being anticipated by US Patent 6,107,062 to Hu et al. (Hu).
As we understand it, the examiner’s position is that the HIV-1 molecular clone
described in Hu anticipates the claim 1 method because the clone:
(1) contains a therapeutic agent that is a nucleic acid (i.e., the antisense or
antisense/ribozyme portion of the genome of the clone),
(2) contains a localization signal (i.e., the HIV-1 packaging signal of the
clone),
where the two are tethered together within the genome of the clone and where the HIV-1
packaging signal functions to cause the therapeutic agent to be localized with the HIV-1
target virus in a cellular of viral compartment of the cell and thereby cause its effect to be
enhanced. (Answer at 5-6).
The patentee concedes that Hu teaches the delivery of a nucleic acid therapeutic
agent to a cell within a virus that is “similar to naturally occurring viruses except for
these [antisense] fragments and [which] enter[s] the host cell in the same manner as the
naturally occurring viruses. (Brief at 10). The patentee does not contest that the
antisense fragment and the remainder of the HIV genome would be “tethered” to one
another.
However, according to the patentee, “the Office Action appears to confuse the
delivery of a therapeutic agent to a cell with the localization of a therapeutic agent with
its viral target in a cellular or viral compartment of the cell.” (Brief at 9). Patentee
argues that the Hu reference “does not teach or suggest a localization signal tethered to a
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