Appeal 2007-1032
Application 10/062,920
have been identified in E. chaffeensis, and mice immunized with
recombinant E. chaffeensis P28 appeared to have developed immunity
against homologous challenge” (id. at 54:10-14).
In addition, the Specification discusses methods for enhancing the
immunogenicity of the proteins, including conjugation with suitable carriers,
and combination with suitable adjuvants (Specification 25-26). Appellants
point out, and the Examiner does not dispute, that the level of skill in the
immunological arts is high, and that it would have been routine to determine
suitable methods for administering the claimed proteins to generate an
immune response, and assay the results of that administration (Br. 11).
We therefore agree with Appellants that the Examiner has not
adequately shown that one skilled in the art would not have been able to
induce an immune response to the proteins recited in the claims, based on
the disclosure in the Specification, without undue experimentation.
The Examiner argues that, in interpreting the claims to require a
method of treatment, the claims have been given their broadest reasonable
interpretation (Answer 14). The Examiner urges that “if inducing an
immune response was intended for making antibodies, then . . . exposure of
the subject to E. canis would not be important and the claim would recite a
step of recovering the antibodies (for a useful method)” (id. at 15). The
Examiner concludes that when the claims are given their broadest reasonable
interpretation in light of the Specification, “the intended use of the claimed
methods is to inhibit infection. No other utility for inducing an immune
response has been provided by Appellants arguments or the specification,
and the claims as written imply a method of treatment” (id.).
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