Appeal No. 2006-2466 Page 6
Application No. 09/835,759
Appellant argues that Noguchi does not disclose all of the limitations of the
claims. In particular, Appellant argues that IL-12 is not “an immunotherapeutic
composition for effecting B cell depletion.” Amended Appeal Brief, page 7.
We conclude that the examiner has not set forth a prima facie case that IL-12 is
“an immunotherapeutic composition for effecting B cell depletion.” As defined in the
specification, an “immunotherapeutic composition” comprises an affinity ligand that
selectively binds to a determinant present on nonmalignant B cells and, upon binding,
directly or indirectly results in B cell depletion. Specification, pages 8-9. Regardless of
whether IL-12 results in B cell depletion, the examiner did not present a prima facie
case that IL-12 is an immunotherapeutic composition; i.e., that IL-12 comprises an
affinity ligand that selectively binds to a determinant present on nonmalignant B cells.
Therefore, the examiner has not presented a prima facie case that Noguchi anticipates
claim 1 or claims 2 and 7-10, which depend from claim 1.
3. Obviousness
The examiner rejected claims 1-5, 7-12, 69-73, 77, 78, 80-86, 90, 92-96, 100,
102-108, 112, 114, and 115 under 35 U.S.C. § 103 as obvious over Apostolopoulos3 in
view of Tachibana,4 Trinchieri, Parkhouse,5 and Wang.6 The examiner argues that
Apostolopoulos teaches that “‘mice immunized with either natural mucin (HMFG) or a
20mer synthetic peptide from the V[NT]R repeat or a MUC1 fusion protein (FP), and
3 Apostolopoulos et al., “Cell-mediated immune responses to MUC1 fusion protein coupled to mannan,”
Vaccine, Vol. 14 No. 9, pp. 930-938 (1996).
4 Tachibana et al., “Tumor Regression in Tumor-Bearing Mice by Inoculations of Immunogenic Somatic
Hybrid Cells in Combination with Cyclophosphamide,” Tokai J. Exp. Clin. Med., Vol. 8, No. 5, pp. 455-463
(1983).
5 Parkhouse et al., “Two Surface Antigen Targets for Immunotoxin-Mediated Elimination of Normal and
Neoplastic Murine B Cells,” Current Topics in Microbiology & Immunology, Vol. 182, pp. 331-335 (1992).
6 Wang, U.S. Patent No. 5,939,380, issued August 17, 1999.
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