Appeal 2006-2945
Application 10/041,958
that a person of ordinary skill in the art would have been motivated to use
human or humanized (e.g., recombinant) antibodies in a dosage formulation
intended for the treatment of humans (see, e.g., Queen and Engleman).
Accordingly, we are not persuaded by Appellants argument.
A14. “[B]ased on example 19 of Williams, the mere fact that an antibody is
a neutralizing antibody (i.e., able to complex with antigen and neutralize
charge so that a precipitate is formed) does not mean it will be
therapeutically effective” (Br. 19; see also Br. 18).
Appellants’ assertion is simply a conclusion. Appellants do nothing
to favor this record with an explanation of the factual basis that supports this
conclusion. In this regard, we find it unclear as to why Appellants focus on
Example 19 of the 20 examples set forth in Williams and base their assertion
solely on this example. In this regard, we note that in Example 16 Williams
reports that “VT2B-Q IgY was capable of preventing lethality by rVT2
[(recombinant SLT II)]” (Williams, col. 62, ll. 37-39). Curiously, this
specific antibody was not tested in Example 19. Further, Appellants’
assertion appears to contradict the express teachings in Williams,
specifically that “[t]he present invention relates to antitoxin therapy for
humans and other animals” (Williams, col. 16, ll. 62-63). Simply stated,
without an explanation of the factual basis supporting this assertion, we find
Appellants’ assertion unpersuasive. It is well settled that arguments of
counsel cannot take the place of evidence lacking in the record. Estee
Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595, 44 USPQ2d 1610, 1615
(Fed. Cir. 1997).
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