Appeal No. 2006-2575
Application No. 10/025,567
As an initial matter, we note that the Examiner’s reliance on the
abstract of the Kaspers article, rather than the full text, is contrary to
established Office-approved practice. The Memorandum from Stephen
Kunin, Deputy Commissioner for Patent Examination Policy, dated
April 29, 2002 (copy attached), states that, except in circumstances not
applicable here, no appeal with a rejection relying on an abstract should be
forwarded when the underlying article qualifies as prior art. See also MPEP
§ 706.02 (“Citation of and reliance upon an abstract without citation of and
reliance upon the underlying scientific document is generally inappropriate
where both the abstract and the underlying document are prior art.”).
However, the full text of the Kaspers article was cited to Appellants
on February 13, 2004, in related Application Serial No. 10/038,260.
Appellants therefore had notice of the contents of the Kaspers article before
they filed their Appeal Brief. Appellants do not allege that the Examiner’s
interpretation of the abstract is inconsistent with the full text of the article.
We therefore do not consider the Examiner’s failure to cite the full article to
be prejudicial to Appellants, and see no reason to remand the application.
The Examiner cites Tokoro as preparing antibodies to pathogenic
E. coli strains in chicken eggs, separating the yolk and albumin from the
shell, drying the antibody containing egg preparation to form a powder
product, and adding the product to livestock food. (Answer 9-10.) The
Examiner relies on Kaspers to establish that “IgG (IgY) is [the] primary
8 Pimentel, U.S. Patent 5,741,489, issued April 21, 1998.
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