Appeal 2007-0320
Application 09/945,339
amount[s] of treated mononuclear cells to facilitate engraftment of
transplanting hematopoietic cells . . . Thus, it is clear that both the prior art
and the instant claims administer[ ] the same treatment to the same patients
to achieve the same results” (Answer 8-9). However, the Examiner has not
pointed to or analyzed any particular facts in evidence in support of this
assertion.
On the other hand, we note Appellants’ argument that “Waller
specifically discloses that the mononuclear cells should not proliferate” and
that “[t]his is exactly the opposite of the claimed method” (Appeal Br. 6).
But this argument does not satisfactorily dispose of the matter because it
does not address Waller’s qualification of what is meant by the phrase “‘. . .
incapable of proliferating and causing a lethal GvHD effect’” (Waller, col. 4,
ll. 40-41). As discussed above, Waller qualifies the phrase as follows: “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)). In our opinion, a reasonable inference is that Waller’s mononuclear
cells retain a minimal ability to proliferate, but not enough to trigger a lethal
GvHD effect.
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