Appeal No. 2007-0187 Page 6
Application No. 10/121,148
Waldmann. Specifically, the Examiner finds that Paglia teaches an immortalized
DC capable of inducing antigen-specific T cell responses in vivo. Answer,
page 5. Accordingly, the Examiner asserts (id.) “[i]t would have been prima facie
obvious to one of ordinary skill in the art at the time the invention was made to
immortalize, as taught by Paglia . . . the DC of [Waldmann] . . . .” We disagree.
As discussed above, Waldmann clearly teaches away from immortalizing a DC
according to Paglia. “A reference may be said to teach away when a person of
ordinary skill, upon reading the reference, would be discouraged from following
the path set out in the reference, or would be led in a direction divergent from the
path that was taken by the applicant.” In re Kahn, 441 F.3d 977, 990, 78
USPQ2d 1329, 1338 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553, 31
USPQ2d 1130, 1131 (Fed. Cir. 1994)).
In contrast, instead of producing immortalized DC, Waldmann teaches the
use of genetically modified ES (embryonic stem) cells “to generate mutant DC on
demand.” Waldmann, page 4. Since Waldmann does not teach dendritic cells
as defined by Appellants’ specification3, and teaches away from producing an
immortalized DC according to Paglia, we find that the Examiner failed to meet his
burden of providing the evidence necessary to establish a prima facie case of
obviousness. Accordingly we reverse the rejection of claims 15-28 under 35
3 In addition, we note Paglia teaches that the CB1 cells described “may represent an intermediate
stage of DC maturation.” Paglia, page 1897, column 2. More specifically, Paglia teaches that the
CB1 cells may represent a DC precursor rather than a mature DC, requiring GM-CSF for
increased expression of MHC class II molecules in order to exhibit in vitro antigen-specific APC
activity. Paglia, page 1899, paragraph bridging columns 1 and 2, and second full paragraph of
column 2. Accordingly, it is our opinion that Paglia does not teach dendritic cells as defined by
Appellants’ specification.
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: September 9, 2013