Appeal 2006-2945
Application 10/041,958
Further, when Perera is considered in the context of the combination
of prior art relied upon by the Examiner, we find that a person of ordinary
skill in the art would have understood that Perera’s antibodies, which are
capable of neutralizing the toxicity of the SLT II toxin, would be useful in
the method taught by Krivan, as would human or humanized variants of
Perera’s antibodies.
Accordingly, we are not persuaded by Appellants’ intimation that
simply because Perera does not teach a therapeutic use for his antibodies, a
person of ordinary skill in the art would not understand Perera’s contribution
to the combination of references relied upon. It is proper to “take account of
the inferences and creative steps that a person of ordinary skill in the art
would employ.” KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1741, 82
USPQ2d 1385, 1396 (2007). See also id. At 1742, 82 USPQ2d 1397 (“A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”).
Further, while Appellants assert that Perera “suggests that antibodies
to subunits of Stx2 are not as effective as antibodies to Stx1,” they fail to
explain what they intend by “effective” or identify the specific portion of
Perera that supports this assertion. Accordingly, it is unclear if Appellants’
assertion is based on a correct or fair reading of Perera. Nevertheless,
because Appellants do not direct attention to any particular portion of Perera
which supports their assertion, we are unable to evaluate Appellants’
assertion in the context of Perera’s teaching. In the absence of a contextual
basis in Perera to evaluate Appellants’ assertion, we do not find it
persuasive.
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