Appeal 2006-2945
Application 10/041,958
effective in treating HUS. Accordingly, we do not find Appellants’
argument persuasive.
Williams:
A12. “It is not clear that Williams is available as prior art, even under 35
U.S.C. [§] 102(e), since it issued on an application filed March 13, 1997,
well after [A]ppellants’ priority date of November 15, 1996” (Br. 17).
“To fully demonstrate [that] the teachings of Williams are entitled to
the filing date of the CIP application, [the Examiner enclosed] page 9 of the
CIP Application, 08/410,058” with the Answer (Answer 9). According to
the Examiner “[t]his page demonstrates verbatim support of the text relied
upon in the rejection” (id.). While, Appellants address Williams in their
Reply Brief, they do not refute the Examiner’s assertion that Williams is
properly available as prior art (see, e.g., Reply Br. 6-7). Accordingly, we do
not find this argument persuasive.
A13. “Williams is drawn to the use of avian antibodies elicited by
immunization of birds with recombinant, preferably cross-linked toxin
fragments. . . . There is no teaching or even recognition that one cannot
inject avian antibodies into humans . . .” (Br. 17-18, emphasis removed).
Appellants’ argument is not consistent with the combination of
evidence relied upon by the Examiner. For example, Williams expressly
states that the “antitoxins are useful in the treatment of humans and other
animals intoxicated with at least one bacterial toxin” (Williams, abstract).
Further, notwithstanding Williams’ express teaching of the treatment of
humans, the combination of evidence relied upon by the Examiner teaches
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