Appeal No. 2006-2415 Page 13
Application No. 09/410,336
We agree with the examiner that, combined with Canto’s suggestion of washing
away non-specifically bound detecting agent to remove undesired background signals,
Yoshimoto and Schmitt-Willich would have suggested practicing the claimed subject
matter.
Appellants further argue that the examiner has failed to establish the prima facie
obviousness of claim 33 because Yoshimoto, Schmitt-Willich and Canto “alone or in
combination, fail to provide the necessary expectation of success.” Appeal Brief, page
13. Appellants assert that Yoshimoto, Schmitt-Willich and Canto “all describe the use of
non-specific contrast agents or dyes for use in human diagnostics or therapeutics.
There would be no expectation that the administration of such non-specific contrast
agents and dyes would successfully bind to specific cancer cells in a breast duct or
ductal network.” Id.
However, as discussed supra, Schmitt-Willich discloses that “for visualization of
tumors” detectable polymer-gadolinium complexes can be attached to “monoclonal
antibodies or their fragments Fab and F(ab’)2 . . ., which, for example, are specific for
human tumors of the . . . breast.” Column 13, lines 25-57. Schmitt-Willich also provides
a working example where an intravenously injected antibody-polymer-gadolinium
complex allowed visualization of a subcutaneous tumor in a mouse. Column 62,
lines 1-14.
Based on these disclosures, we agree with the examiner that one skilled in the
art would have reasonably expected that breast cancer cells would have been detected
by applying the detectable breast cancer-specific antibody-polymer-gadolinium
complexes taught by Schmitt-Willich to the breast duct cancer diagnostic methods of
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