Monday, October 21, 2013

Unexpected results argument fails in Ex parte Taylor

Ex parte Taylor

**As to teaching away

This argument is not persuasive. Wh
ile it is true that Anand states
that genetically modifying an antibody
to fuse it to an antigen overcomes
some disadvantages of chemically cross-linking these components, both
Anand and Yu demonstrate that chemical
ly cross-linking an antibody and an
antigen was known as one method of
successfully conjugating the two.
Anand’s characterization of chemi
cal cross-linking as a nonpreferred
embodiment does not teach away from
that approach, because it does not
cast doubt on whether chemical cross-
linking would successfully produce
the desired immunoconjugate.
In re Gurley
, 27 F.3d 551, 553 (Fed. Cir.
1994) (“[I]n general, a refe
rence will teach away if it suggests that the line of
development flowing from the referenc
e’s disclosure is unlikely to be
productive of the result sought by the applicant.”);
. (“A known or obvious
composition does not become patentab
le simply because it has been
described as somewhat inferior to so
me other product for the same use.”).

**As to comparative tests

In short, as Appella
nts have conceded, the results
shown in the Specification’s Figures 1
and 2 do not relate to the claimed
immunoconjugate, but only to particular
peptides derived from vIL18BP.
In re Fenn
, 639 F.2d 762, 765 (CCPA 1981) (“
Although it is well settled
that comparative test data showing
an unexpected result will rebut a prima
facie case of obviousness, the comp
arative testing must be between
claimed invention
and the closest prior art
.” (Emphasis added).)


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