Appeal 2006-2945
Application 10/041,958
2. Tzipiri fails to address the combined teachings of the references
relied upon by the Examiner, which include a recognition that it would have
been prima facie obvious to a person of ordinary skill in the art to produce
human or humanized antibodies for the advantages taught by Queen and
Engleman,
3. Tzipiri’s statements fail to recognize the presumption of validity
associated with the claims of an issued United States patent. See 35 U.S.C.
282 (“[a] patent shall be presumed valid. Each claim of a patent (whether in
independent, dependent, or multiple dependent form shall be presumed valid
independently of the validity of other claims . . . .”). In this regard, we direct
attention to claims 17 and 18 of Krivan, which are specifically directed to
the use of both a prophylactically effective amount and a therapeutically
effective amount of anti-SLT antibodies in the treatment of SLT related
diseases in humans.
In addition, we recognize Appellants’ assertion that the claimed
technology “is currently being developed using non-profit research funds
due to the critical need for such a product, a need which has been known for
many years but for which there is still no accepted product available to
clinicians” (Br. 9). Counsel’s assertion notwithstanding, there is no
evidence on this record to support a finding of a long-felt need for the
claimed invention. As set forth in In re Kahn, 441 F.3d 977, 990-91, 78
USPQ2d 1329, 1338-39 (Fed. Cir. 2006), alteration original,
our precedent requires that the applicant submit actual evidence
of long-felt need, as opposed to argument. This is because
“[a]bsent a showing of long-felt need or the failure of others,
the mere passage of time without the claimed invention is not
evidence of nonobviousness.” Iron Grip Barbell Co. v. USA
Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004) . . . .
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