Appeal No. 2006-2417 Page 8
Application No. 09/200,791
diagnostics. See e.g., the ‘894 patent, column 2, lines 1-17, where the patent
discloses “[i]n accomplishing, the foregoing object of the invention, there has
been provided . . . a method of reducing kidney uptake of antibody fragment
conjugates in a patient during radioimmunodiagnosis or immunotherapy. . . .”
There is no disclosure in the ‘894 patent that the disclosed methodology would
be generally applicable to any protein conjugate.
For the foregoing reasons, it is our opinion that the ‘894 patent does not
provide a description of the genus of protein conjugates set forth in the claims
now before us on appeal. Accordingly, it is our opinion that the claims before us
on appeal are not receive the benefit of the filing date of the ‘894 patent.
Anticipation:
For the foregoing reasons, we find no error in the rejection of claim 1
under 35 U.S.C. § 102(b) as anticipated by Behr. Therefore, the rejection is
affirmed. As set forth above claims 2-8, 11-19, 23-28, 31-39, and 41 fall together
with claim 1.
Obviousness:
Having found claim 1 anticipated by Behr, we find no error in the
obviousness rejection of claim 1, for obviousness is the epitome of anticipation.
Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 716, 223 USPQ
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