Appeal 2007-0320
Application 09/945,339
(emphasis added)). However, Waller immediately qualifies what is meant
by the phrase: “As used herein, this phrase means that the mononuclear cells
can be treated, for example by exposure to a source of ionizing radiation,
which will have the effect of preventing lethal GvHD. It is believed that the
treatment sufficiently hinders the mononuclear cell proliferation such that
they do not cause a lethal GvHD in the patient” (id. at col. 4, ll. 42-47
(emphasis added)).
The Examiner has rejected the claims under 35 U.S.C. § 103 as
unpatentable over the combined teachings of Waller and Sykes, but the
Examiner’s underlying rationale appears to be one of anticipation, rather
than obviousness.
For example, the Examiner concedes that “Waller do[es] not explicitly
teach[ ] that [the] treated T cell[s] retain their ability to proliferate” (Answer
5), but argues that “Waller teaches that said treatment sufficiently hinders
the mononuclear cell proliferation such that they do not cause a lethal
GvHD” and “stress[es] that said treated T cell[s] should be viable” (id.),
while the present Specification teaches that “[t]he mononuclear cells are
incubated with a sufficient concentration of a cytotoxic drug so as to
substantially reduce their ability to cause GvHD” and a “sufficient
concentration is that which causes greater than 90% inhibition of the
proliferation of treated cells” (id.).
In addition, the Examiner argues that “Sykes [ ] specifically stress[es]
that [ ] treatment should not completely eliminate[ ] T cells . . . [t]herefore it
would be obvious . . . to deduce that said non-eliminated T cells would be
able to retain their ability to proliferate in the recipient” (Answer 5). So,
5
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