Appeal 2007-2542
Application 10/623,891
considered highly effective overall, the poultry industry continues to
experience losses due to MD” (Specification 1: ¶ 2). Thus, “there is still a
strong incentive to develop even more efficacious products that will protect
better in the face of early challenge with very virulent field strains without
causing adverse side effects” (Specification 1: ¶ 2).
Claims 1-3, 5-10, and 12-15, which are all the pending claims, stand
rejected under 35 U.S.C. § 103(a) as obvious over Witter ’97 (Avian
Diseases, 41:407-421, 1997), Witter ’95 (Avian Diseases, 39: 269-284,
1995), and Jones (J. Virol., 70: 2460-2467, 1996) (Answer 3).
We select claims 1 and 3 as representative of the appealed claims to
focus our discussion. Claims 1 and 3 read as follows:
1. A viral agent comprising a recombinant Marek’s disease
virus CVI988/X stably transformed with a foreign DNA
construct which comprises a long terminal repeat sequence of a
reticuloendotheliosis virus, wherein said viral agent is effective
to elicit an immune response in a chicken to Marek’s disease
virus without causing a significant degree of pathogenicity in
said chicken, and further wherein said long terminal repeat
sequence is inserted upstream of the ICP4 gene of said Marek’s
disease virus.
3. The viral agent of claim 1 wherein said long terminal repeat
sequence comprises a Pac I excised DNA segment from
Marek’s disease virus strain ATCC PTA-4945.
FINDINGS OF FACT
In concluding that the claimed subject matter would have been
obvious over Witter ’97, Witter ’95, and Jones, the Examiner makes the
following findings:
1. Witter ’97 describes a recombinant Marek’s disease virus (MDV),
designated RM1, which resulted from coculture of virulent MDV strain
2
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