Ex Parte Fattom et al

Board of Patent Appeals and Interferences

Jan 29, 2004

08949757 (B.P.A.I. Jan. 29, 2004)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

Paper No. 30

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ALI IBRAHIM FATTOM,
RAMESH K SOOD, and SARA E. SHEPHERD
__________

Appeal No. 2002-1545
Application No. 08/949,757
__________

ON BRIEF
__________

Before ADAMS, MILLS, and GREEN, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the examiner’s
final rejection of claims 1-6, 27, 31-39 and 42.1 Claims 1 and 36 are
representative of the subject matter on appeal, and read as follows:
1. An isolated Enterococcus faecalis antigen comprising 2-acetamido-2-
deoxy-glucose, rhamnose, glucose and 2-acetamido-2-deoxy-

1 Note that the claims were subject to an election of species, and the claims were
examined to the extent they read on the species drawn to am Enterococcus
faecalis antigen comprising rhamnose and acetamido-deoxyglucose in a 1:2
molar ratio. See Paper No. 13. Thus, this opinion reaches only the elected
species.

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galactose wherein 2-acetamido-2-deoxy-glucose and rhamnose are in
a 1:2 molar ratio.

36. An isolated Enterococcus antigen selected from the group consisting
of an E. faecalis antigen comprising 2-acetamido-2-deoxy-glucose,
rhamnose, glucose and 2-acetamido-2-deoxy-galactose, wherein 2-
acetamido-2-deoxy-glucose and rhamnose are in a 1:2 molar ratio, an
E. faecalis antigen comprising a trisaccharide repeat which comprises
a 6-deoxy sugar, and an E. faecium antigen comprising 2-acetamido-
2-deoxy-galactose and galactose.

The examiner relies upon the following references:
Foster et al. (Foster) 4,444,879 Apr. 24, 1984
Hawke et al. (Hawke) 5,641,390 Jun. 24, 1997
Blake et al. (Blake) 5,866,135 Feb. 2, 1999

Wessman, “Chemical Composition and Immunological Specificity of Cell Wall
Polysaccharide Group Antigens of Streptococcal Groups P and U,” Infection and
Immunity, Vol. 12, No.1, pp. 156-161 (1975)

Pritchard et al. (Pritchard), “Carbohydrate Fingerprints of Streptococcal Cells,”
Journal of Clinical Microbiology, Vol. 13, No. 1, pp.89-92 (1981)

Aluyi et al. (Aluyi), “Trimethylsilyl-sugar profiles of Streptococcus milleri and
Streptococcus mitis, Journal of Applied Bacteriology, Vol. 54, pp. 391-397 (1983)

Moreau et al. (Moreau), “Application of high-resolution N.M.R. spectroscopy to
the elucidation of the structure of the specific capsular polysaccharide of
Streptococcus pneumoniae Type 7F,” Carbohydrate Research, Vol. 182,
pp. 79-99 (1988)

Dick, Jr., et al. (Dick), “Glycoconjugates of Bacterial Carbohydrate Antigens,”
Conjugate Vaccines, Vol. 10, pp. 48-114 (1989)

Kitada et al. (Kitada), “Immunochemical characterization of the carbohydrate
antigens of serotype c/Lancefield group C ‘Streptococcus milleri’,” Oral Microbiol
Immunol., Vol. 8, pp.161-166 (1993)

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Naso et al. (Naso), “Polysaccharide conjugate vaccines for the prevention of
gram-positive bacterial infections,” Adv. Exp. Med. Biol., Vol. 397, pp. 133-140
(1996)

Claims 1-6, 27, 31-39 and 42 stand rejected under 35 U.S.C. § 112, first
paragraph, on the grounds that the specification fails to enable one to make and
or use the invention commensurate in scope with the claims, and on the grounds
that the specification fails to provide an adequate written description of the
claimed subject matter.
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Wessman; as being anticipated by Moreau; as being
anticipated by Prichard; and as being anticipated by Aluyi. In addition, claims 1,
4, 27 and 33-38 stand rejected under 35 U.S.C. § 102(b) as being anticipated by
Kitada.
Claims 1-6 and 39 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Kitada and Blake or Dick or Naso. Claims 1-6
and 39 also stand rejected under 35 U.S.C. § 103(a) as being obvious over the
combination of Aluyi or Pritchard or Moreau or Wessman and Blake or Dick or
Naso. Finally, claims 31, 32 and 42 stand rejected under 35 U.S.C. § 103(a) as
being obvious over the combination of Aluyi or Pritchard or Moreau or Wessman
or Kitada as combined with Blake, Hawke and Foster.
After careful review of the record and consideration of the issues before
us, we reverse all of the rejections of record.

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DISCUSSION
Rejections under 35 U.S.C. § 112 First Paragraph
Claims 1-6, 27, 31-39 and 42 stand rejected under 35 U.S.C. § 112, first
paragraph, on two grounds: 1) that the specification fails to enable the full scope
of the claimed subject matter; and 2) that the specification fails to provide
adequate written description for the claimed invention.
We would like to initially note that the examiner addressed these two
grounds of rejection together. They are, however, different and separate
rejections, see Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64, 19 USPQ2d
1111, 1116-17 (Fed. Cir. 1991), and require separate and different analyses. In
the future, we recommend that if both rejections are appropriate based on the
record, that they be made and analyzed separately. But given our disposition of
the appeal, we do not find it necessary to remand the application to the examiner
to perform that separate analysis.
According to the rejection:
Claims 1-6, 27, 31-32, 33-39 and 42 are rejected under 35
U.S.C. 112, first paragraph (scope), because the specification,
while being enabling for the antigen produced by ATCC 202013,
does not reasonably provide enablement for any antigen
comprising the recited four sugars, having any type of chemical
bonds, any orientation one to the other . [sic] The specification
does not enable any person skilled in the art to which it pertains, or
with which it is most nearly connected, to make and use the
invention commensurate in scope with these claims.
The specification fails to provide adequate written
description for the claimed genus of carbohydrates from
Enterococcus because it does not disclose representative species

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described by structure, physical or chemical characteristics,
function correlated with structure or a combination of these
sufficient to establish that the applicant had possession of the
claimed antigens. See the Interim Guidelines on Written
Description,.(Fed Reg , June 15, 1998, Volume 63, Number 114,
pages 32639-32645).

Examiner’s Answer, page 5.
The rejection acknowledges that the EFS1 was prepared from specific
strains as set forth in the specification, but goes on to assert that the structure of
the antigen is not taught, and thus the specification is not enabling for all the
species of the four recited sugars in any antigenic configuration. The rejection
notes that
[a] representative number of species have not been described by
sufficient relevant identifying characteristics, such as function
correlated with structural characteristics. Only a NMR spectra for
the entire carbohydrate is provided and the specific bonds and
orientation of the sugars one to another is not ascertainable from
this information. The specification also teaches the presence of
phosphates and other components but how the whole structure is
put together is not disclosed therefore the specification does not
provide written description of epitope components of the whole
carbohydrate.

Id. at 6.
While the specification discloses three different antigens that are
characteristic of different Enterococcal antigens, the rejection asserts that the
carbohydrates appear to be distinct and not fragments of one another, and thus
“significantly different corresponding proteins . . . work together for the

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expression of significantly different carbohydrate antigens.” Id. The rejection
concludes:
The specification does not describe all of the many combinations of
sugars which comprise rhamnose, glucose, 2-acetamido-2-deoxy
glucose and 2-acetamido-2-deoxy galactose, nor does it provide
how these sugars are related one to another. The structural
arrangement of the components of claimed carbohydrate antigen is
not disclosed. The specification lacks any teaching with the [sic]
respect to the manner in which the various sugars are compiled to
define the surface antigen of Enterococcus. It is clear that the
claimed carbohydrate antigen would react with the polyclonal
antibodies which were induced to the deposited stain [sic] (whole
cell antigen which comprised both protein and carbohydrate
antigens) but it is not clear what the structural orientation of
components are which make up the claimed carbohydrate and
afford Enterococcus its unique carbohydrate characteristics. It is
clear that the molar ratios of the various sugars of the carbohydrate
antigens are taught by the instant invention, but how many, which
sugars, the conformational changes would or could be changed to
afford and produce the many claimed carbohydrate antigens is not
clearly described and no guidance is provided as to how the
various components are inter-related. The specification describes
polyclonal antibodies which bind whole cell antigen of which the
carbohydrate antigen is a part but not with which specific fragments
they bind or with which conformational epitopes they bind are not
taught. Further, the polyclonal antibodies are not a standardized
reagent and therefore are not a recognized standard for defining
the corresponding antigen. Therefore, the written description
requirement [is] not satisfied over the full scope of the claims.

Id. at 6-7.
Turning first to the rejection under 35 U.S.C. § 112, first paragraph, scope
of enablement, “[e]nablement requires that the specification teach those in the
art to make and use the invention without ‘undue experimentation.’ That some
experimentation may be required is not fatal; the issue is whether the amount of

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experimentation required is not ‘undue.’” In re Vaeck, 947 F.2d 488, 495, 20
USPQ2d 1438, 1444 (Fed. Cir. 1991) (citation omitted, emphasis in original).
“Whether undue experimentation is needed is not a single, simple factual
determination, but rather is a conclusion reached by weighing many factual
considerations.” In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed.
Cir. 1988). The factual considerations discussed in Wands are: (1) the quantity
of experimentation necessary to practice the invention, (2) the amount of
direction or guidance presented, (3) the presence or absence of working
examples, (4) the nature of the invention, (5) the state of the prior art, (6) the
relative skill of those in the art, (7) the predictability or unpredictability of the art,
and (8) the breadth of the claims. Id.
At best, the examiner has focused upon one factor, the amount of
direction or guidance presented, to the exclusion of the others. Thus, the
examiner has failed to set forth a prima facie case that the specification fails to
enable the full scope of the claims. Moreover, as noted by appellants:
The present specification provides the ATCC number for a
deposited strain (ATCC 202013) which carries an antigen as
claimed in present claim 1. The specification further provides, on
page 17, details of cell fermentation, and on pages 18-20, a
detailed description of how the fermented and harvested cells of
this strain can be treated in order to extract the recited antigen.
The specification then sets forth details of the steps used to isolate
and purify the antigen. On pages 20 and 21, applicants provide the
sugar composition of the isolated antigen, including the identity and
molar ratio of four sugars contained in the antigen, and biochemical
and H1-NMR analyses of the antigen.

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Revised Brief on Appeal, pages 8-9. The rejection, however, does not
specifically address this guidance provided by the specification and why it fails to
enable the antigen as claimed in claim 1. Therefore, the rejection under 35
U.S.C. § 112, first paragraph, on the grounds that the specification fails to enable
the full scope of the claims, is reversed.
Turning next to the rejection under 35 U.S.C. § 112, first paragraph, lack
of adequate written description, because the examiner failed to separate the
rejection from the enablement rejection, it is unclear exactly what the position of
the examiner is. To the best of our understanding, however, the examiner is
concerned that the specification does not describe the structure of the claimed
antigen.
In Enzo Biochem, Inc. v. Gen-Probe Inc., 296 F.3d 1316, 63 USPQ2d
1602 (Fed. Cir. 2002), the court adopted a portion of the Guidelines proffered by
the United States Patent and Trademark Office (USPTO). The court stated that:
The written description requirement can be met by “showing that an
invention is complete by disclosure of sufficiently detailed, relevant
identifying characteristics . . . i.e., complete or partial structure,
other physical and/or chemical properties, functional characteristics
when coupled with a known or disclosed correlation between
function and structure, or some combination of characteristics.

Enzo Biochem, 296 F.3d at 1324, 63 USPQ2d at 1613 (citations omitted).
In this case, as set forth above with respect to the enablement rejection,
the specification provides, inter alia, the ATCC Number for the deposited strain,
the method of isolating the antigen, the sugar composition of the isolated

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antigen, including the identity and molar ratio of four sugars contained in the
antigen, and biochemical and H1-NMR analyses of the antigen. The examiner
has not addressed why the partial structure combined with the deposited strain,
method of isolation and the H1-NMR analyses of the antigen is not sufficient to
demonstrate that appellants were in possession of the claimed antigen. See
Purdue Pharma L.P. v. Faulding Pharmaceutical Co., 230 F.3d 1320, 1323, 56
USPQ2d 1481, 1483 (Fed. Cir. 2000) (noting that the disclosure should convey
to one skilled in the art that the inventor was had possession of the invention at
the time of filing). Therefore, the rejection under 35 U.S.C. § 112, first
paragraph, lack of written description, is also reversed.
Rejections under 35 U.S.C. § 102(b)
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Wessman.
According to the rejection, the claimed antigen is claimed as having a 2:1
molar ratio of rhamnose/N-acetylglucosamine isolated from Enterococcus
asserting that the N-acetylglusoamine is analogous to 2-acetamido-2-deoxy
glucose. The rejection contends that Enterococcus was formerly known as
Streptococcus, and then states that:
Wessman discloses a Streptococcus strain which upon purification
of the surface antigen resulted in a composition which contains
rhamnose/N-acetylglucosamine (analogous to 2-acetamido-2-
deoxy-glucose) in a 2:1 molar ratio, as well as contained glucose
and 2-acetamido-2-deoxy-galactose (also known as
galactosamine). Wessman discloses an antigen with the same

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components in the same molar ratio, from a Streptococcal
bacterium and therefore anticipates the now claimed invention.

Examiner’s Answer, page 8.
Appellants acknowledge that Enterococcus was formerly known as
Streptococcus, but that only Streptococcus having the group D antigen, i.e.,
Streptococcus D, were placed in the Enterococcus genus. Appellants cite Ruoff
and Deibel to support their contention that Enterococcus differ significantly from
the other groups of Streptococcus. See Revised Brief on Appeal, pages 12-13.
According to Appellants, “[t]he antigens characterized in Wessman are the group
antigens for P and U streptococci, respectively, while the presently claimed
antigen is characteristic of a subgroup of clinical isolates of one species of
Enterococcus, E. faecalis.” Id. at 14 (emphasis in original).
The examiner acknowledges that Streptococcus and Enterococcus
significantly differ, but contends that they are similar is sharing cross-reactive
antigenic determinants. See Examiner’ Answer, page 24. The examiner asserts
that “[a]ny antigen that contains these sugars in the claimed amounts would read
on the claimed antigen. The presence of cross reactive carbohydrate epitopes,
despitegenetic divergence between genera, defined shared carbohydrate
antigens between different genera of bacteris.” Id. at 25. The examiner also
asserts that “[n]o side by side comparison has been provided. No evidence has
been made of record to show that the antigen of the prior art does not induce

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antibodies immunoreactive with EFS1 or does not react with antibodies induced
to ATCC 202013.” Id. at 28.
We agree that the examiner has not established a prima facie case that
Wessman describes every limitation of the claimed invention. See In re
Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997)
(stating that in order for a prior art reference to serve as an anticipatory
reference, it must disclose every limitation of the claimed invention, either
explicitly or inherently). The examiner acknowledges that Streptococcus and
Enterococcus significantly differ, but contends that they are similar is sharing
cross-reactive antigenic determinants. The rejection, however, provides no
evidence to support that conclusory statement. See In re Lee, 277 F.3d 1338,
1343-44, 61 USPQ2d 1430, 1433-34 (Fed. Cir. 2002) (in reviewing an
obviousness rejection, the court noted that “conclusory statements” as to
teaching, suggestion or motivation to arrive at the claimed invention “do not
adequately address the issue.”).
In addition, we do not agree that the claims read on “any antigen that
contains the sugars in the claimed amounts.” The claims are drawn to an
isolated Enterococcus faecalis antigen, and in addition to containing the sugars
in the claimed amounts, the antigen must be cross-reactive with antibodies
raised to the antigen isolated from the deposited strain, as well as being

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consistent with the H1-NMR analyses of the antigen provided by the
specification.
Therefore, the rejection of claims 1, 4, 27 and 35-38 under 35 U.S.C.
§ 102(b) as being anticipated by Wessman is reversed.
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Moreau.
According to the rejection:
The claims of the instant Application identify the antigen by a
2:1 molar ratio of rhamnose/N-acetylglucosamine (analogous to 2-
acetamido-2-deoxy-glucose), the source of the claimed antigen is
Enterococcus (formerly known as Streptococcus), and Moreau [ ]
discloses a Streptococcus strain which upon purification of the
surface antigen resulted in a composition which contains
rhamnose/N-acetylglucosamine (analogous to 2-acetamido-2-
deoxy-glucose in a 2:1 molar ratio, as well as comprised glucose
and 2-acetamido-2-deoxy-galactose (also known as
galactosamine). Moreau [ ] discloses an antigen with the same
components in the same molar ratio, from a Streptococcal
bacterium and therefore anticipates the now claimed invention.

Examiner’s Answer, pages 8-9.
In addition to the arguments made with respect to the rejection over
Wessman, Appellants argue that Moreau discloses an antigen obtained from
Streptococcus pneumoniae type 7F, which is not a group D streptococcus.
Appellants cite Hardie to demonstrate that S. pneumoniae is a viradans
streptococcus, which is distinct from enterococci. Appellants also argue that
Moreau does not disclose an antigen having an NMR spectrum as shown in
Figure 1, as required by claim 37. See Revised Brief on Appeal, pages 13-14.

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The examiner responds by arguing that “the claimed antigen is not
required to be a Group D streptococcal antigen,” and that “[t]he claimed invention
is not drawn to a lipoteichoic acid antigen but to a carbohydrate antigen.”
Examiner’s Answer, page 28. The examiner concludes that “[a] side by side
comparison has not been made of record to show that the antigen of the prior art
does not induce antibodies immunoreactive with EFS1 or does not react with
antibodies induced to ATCC 202013 (definitions of the claimed invention).” Id. at
29.
The rejection of claims 1, 4, 27 and 35-38 under 35 U.S.C. § 102(b) as
being anticipated by Moreau is reversed for the same reasons set forth supra
with respect to the rejection over Moreau. Moreover, because the examiner has
not met the burden of establishing a prima facie case that the antigen of the prior
art appears to be the same as the claimed antigen, appellants do not need to
come forward with a side by side comparison to establish that the antigens are
different. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed.
Cir. 1990).
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Pritchard.
According to the rejection:
Pritchard [ ] discloses Streptococcus strains which upon purification
of the surface antigen resulted in a composition which contains
rhamnose/N-acetylglucosamine (analogous to 2-acetamido-2-
deoxy-glucose) in a 2:1 molar ratio, as well as comprised glucose

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and 2-acetamido-2-deoxy-galactose (also known as
galactosamine). Pritchard [ ] discloses an antigen with the same
components in the same molar ratio, from a Streptococcal
bacterium and therefore anticipates the now claimed invention.

Examiner’s Answer, pages 9-10.
Appellants argue that Pritchard disclose carbohydrate fingerprints of
whole cells of Group A, B, C, D, F and G streptococci, which includes the group
antigen and all the other carbohydrate type antigens. As such, appellants
contend that Pritchard does not disclose an isolated antigen, and thus cannot
anticipate the claimed invention, which requires an isolated invention. Revised
Brief on Appeal, pages 15-16. We agree.
The examiner asserts that Pritchard “did isolate the carbohydrate prior to
analysis of the antigen to determine the presence of the carbohydrate
constituents present in each type of bacteria.” Examiner’s Answer, page 31.
The examiner asserts further that “Pritchard anticipates the now claimed
invention as no specific process steps, deposited strain, structural relationship
between the components of the recited carbohydrate are incorporated into the
claim,” and that “Pritchard anticipates the claimed antigen, because the antigen
of Pritchard is made up of the recited carbohydrates.” Id. The examiner also
contends that the claims do not exclude whole bacteria that comprise the recited
antigen.
While the examiner asserts that Pritchard isolated the carbohydrate prior
to analysis, we do not find that the reference supports that assertion. Pritchard

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describes the analysis of the carbohydrates of whole cells of group A, B, C, D, F
and G streptococci. See Pritchard, abstract. In the method described by the
reference, the bacteria are grown on agar, a portion of which is transferred to a
capillary tube and subject to centrifugation. Methanolic HCl is added to the
tubes, which are then heated for 25 hours at 80°C. The sugars were derivatized
and then analyzed using gas chromatography. See id. at 89-90. Table I reports
the results of the gas chromatographic analysis. Thus, the cells are broken
down to release the individual sugars, which can then be detected using gas
chromatography, and there was no isolation of antigens comprising more than a
single sugar.
We also do not agree with the examiners contention that the claims do not
exclude whole bacteria that comprise the recited antigen. To read the claims in
that manner would completely render completely moot the preamble of the claim,
which recites “[a]n isolated Enterococcus faecalis antigen.” See In re Paulson,
30 F.3d 1475, 1479, 31 USPQ2d 1671, 1673 (Fed. Cir. 1994) (“[T]erms
appearing in a preamble may be deemed limitations of a claim when they “give
meaning to the claim and properly define the invention.’”).
Claims 1, 4, 27 and 35-38 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Aluyi.
Aluyi, according to the rejection, describes the isolation of an antigen from
Streptococcus milleri, wherein the antigen comprises a 1:2 ratio of 2-acetanido-

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2-deoxy-glucose and rhamnose, and also comprises glucose and 2-acetamido-2-
deoxy-glucose (galactosamine).
Appellants argue that Aluyi describes the chromatographic analysis of
total sugar content for seventy strains of viridans streptococci, and thus do not
describe an isolated antigen. Appellants argue further that Aluyi describes
strains of viridans-group streptococci, which does not include the enterococci.
See Appeal Brief, page 16. We agree.
The examiner responds by arguing that “the instantly claimed invention
recites open language and would permit the presence of other sources of
carbohydrate antigen.” Examiner’s Answer, page 32. The examiner asserts
further that “[t]he antigen of Aluyi [ ] has the claimed sugars in the recited ratio
and would inherently anticipate the claimed antigen.” Id.
Again, we do not agree with the examiner’s interpretation that the claim
reads on the presence of other sources of carbohydrate antigen for the reasons
set forth supra with respect to the rejection over Pritchard. In addition, as we
stated with respect to the rejection over Wessman, the claims are drawn to an
isolated Enterococcus faecalis antigen, and in addition to containing the sugars
in the claimed amounts, the antigen must be cross-reactive with antibodies
raised to the antigen isolated from the deposited strain, as well as being
consistent with the H1-NMR analyses of the antigen provided by the
specification.

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Finally, claims 1, 4, 27 and 33-38 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Kitada.
According to the rejection, Kitada describes the isolation of an antigen
from Group C streptococci, wherein the antigen comprises a 1:2 ratio of 2-
acetanido-2-deoxy-glucose and rhamnose, and also comprises glucose and 2-
acetamido-2-deoxy-glucose (galactosamine). The rejection concludes that
“Yakushii [Kitada] [ ] discloses an antigen with the same components in the same
molar ratio, from a Streptococcal bacterium and therefore anticipates the now
claimed invention.” Examiner’s Answer, page 11.
Appellants reiterate their arguments with respect to Wessman, and the
rejection of claims 1, 4, 27 and 33-38 under 35 U.S.C. § 102(b) as being
anticipated by Kitada is reversed for reasons set forth supra with respect to that
rejection.
Rejections, under 35 U.S.C. § 103(a)
Claims 1-6 and 39 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Kitada and Blake or Dick or Naso.
Kitada is relied upon as above. As Blake and Dick and Naso are relied
upon for teaching the conjugation of an antigen to a carrier, they fail to remedy
the deficiencies of Kitada, and the rejection is reversed.

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Claims 1-6 and 39 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Aluyi or Pritchard or Moreau or Wessman as
combined with Blake or Dick or Naso.
Again, Aluyi and Pritchard and Moreau and Wessman are relied upon as
above, and Blake and Dick and Naso are relied upon for teaching the
conjugation of an antigen to a carrier. Thus, again Blake and Dick and Naso fail
to remedy the deficiencies of Aluyi and Pritchard and Moreau and Wessman,
and the rejection is reversed.
Claims 31, 32 and 42 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Aluyi or Pritchard or Moreau or Wessman or
Kitada as combined with Blake and Hawke and Foster.
Aluyi, Pritchard, Moreau, Wessman, Kitada and Blake are relied upon as
set forth above. As Hawke and Foster are relied upon labeling an antigen and
for immobilization of an antigen on a solid matrix, they fail to remedy the
deficiencies of Aluyi, Pritchard, Moreau, Wessman, Kitada and Blake, and the
rejection is reversed.

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CONCLUSION
Because each of the rejections set forth in the Examiner’s Answer fail to
set forth a prima facie case of unpatentability, all of the rejections of record are
reversed.
REVERSED

Donald E. Adams )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Demetra J. Mills )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
Lora M. Green )
Administrative Patent Judge )

LMG/jlb

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