Zoetis Services LLC

Patent Trials and Appeals Board

Oct 20, 2021

2021000783 (P.T.A.B. Oct. 20, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/282,702 05/20/2014 Cassius McAllister Tucker PC33517B 8762
110408 7590 10/20/2021
Zoetis
10 Sylvan Way
Parsippany, NJ 07054
EXAMINER
JACKSON-TONGUE, LAKIA J
ART UNIT PAPER NUMBER
1645
NOTIFICATION DATE DELIVERY MODE
10/20/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
AnimalHealthDocketing@zoetis.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_________________

Ex parte CASSIUS MCALLISTER TUCKER and
JOHN DAVID HAWORTH

_________________

Appeal 2021-000783
Application 14/282,702
Technology Center 1600
_________________

Before JEFFREY N. FREDMAN, DEBORAH KATZ, and
DAVID COTTA, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review2, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1, 3–14 and 16–23. We have
jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party-in-interest as Zoetis Services LLC. (Appeal Br. 3.)
2 We consider the Non-Final Office Action issued on June 19, 2019 (Non-
Final Act.”), the Final Office Action issued December 5, 2019 (“Final
Act.”), the Appeal Brief filed February 14, 2020 (“Appeal Br.”), the
Examiner’s Answer issued on April 7, 2020 (“Ans.”), the Reply Brief filed
Appeal 2021-000783
Application 14/282,702

2
The Examiner rejects Appellant’s claims under 35 U.S.C. § 103(a) as
being obvious over Frantz3 and Lauterslager.4 (See Non-Final Act. 3–10.)
The Examiner also rejects claim 23 under 35 U.S.C. § 112, first
paragraph, for lack of written description. (See Final Act. 12–13.)
Appellant’s Specification is directed to canine vaccines. (Spec. 1.)
Appellant’s claim 1 recites5:
A method of treating a dog for canine diseases comprising
administering to the dog therapeutically effective amounts of vaccine,
wherein the vaccine comprises a viral antigen, and, optionally, a
bacterin, and
wherein the vaccine is administered orally in a first dose and
orally in a second dose, said second dose being administered about 7
days to about 35 days following administration of said first dose, and
wherein said viral antigen is canine distemper (CD) virus, and
one or more of canine adenovirus type 2 (CAV-2), canine
parainfluenza (CPI) virus, canine parvovirus (CPV), and canine
coronavirus (CCV), and
wherein said optional bacterin is selected from the group
consisting of Leptospira canicola, L. grippotyphosa, L.
icterohaemorrhagiae, L. pomona, L. bratislava, and Bordetella
bronchiseptica.

(Appeal Br. 19.) Claim 1 is not limited by any specific efficacy other than
being a method of “treating” and administering a “therapeutically effective”

May 29, 2020 (“Reply Br.”) and the oral argument held on October 7, 2021
(“Transcript”), in reaching our decision.
3 Frantz et al., U.S. Patent Application Publication 2005/0089533 Al,
published April 28, 2005.
4 Lauterslager et al., “Improvement of the systemic prime/oral boost strategy
for systemic and local responses,” VACCINE, 21:1391-1399 (2003).
5 Claim 1 has been modified by adding indentations to separate elements of
the claimed method.
Appeal 2021-000783
Application 14/282,702

3
amount of vaccine. Thus, claim 1 broadly recites administering viral
vaccine orally in two doses separated by a recited interval.
Appellant presents separate arguments for the non-obviousness of
claim 23, but otherwise does not distinguish between the rejected claims.
Accordingly, we focus on claims 1 and 23 in our review of the rejection
under 35 U.S.C. § 103(a). See 37 C.F.R. § 41.37(c)(1)(iv).
Findings of Fact
1. Frantz teaches combination vaccines and methods for
protecting dogs against diseases caused by canine pathogens, including
canine distemper caused by canine distemper (CD) virus, respiratory disease
caused by canine adenovirus type 2 (CAV-2), canine parvovirus (CPV), and
canine coronavirus (CCV). (See Frantz Abstr.; see Ans. 4–5.)
2. Frantz also teaches combination vaccines and methods for
protecting dogs against diseases caused by bacteria including Bordetella
bronchiseptica (targeting the p68 antigen) and others recited in Appellant’s
claim 1. (See Frantz Abstr. ¶ 2; see Ans. 5–6.)
3. Frantz teaches several different types of combination vaccines
against viruses and bacteria. (See Frantz ¶¶ 18, 23–26, 29; see Ans. 6.)
4. Frantz teaches that p68 vaccine can be administered to a dog by
any known route, including oral, intranasal, mucosal, topical, transdermal,
and parenteral, including intravenous, intraperitoneal, intradermal,
subcutaneous, or intramuscular. (See Frantz, ¶ 71; see Ans. 6–7.)
5. Frantz teaches that “[a]dministration can be achieved using a
combination of routes,” as exemplified by a first administration using a
parental route and subsequent administration using a mucosal route. (See
Frantz ¶ 71; see Ans. 6–7.)
Appeal 2021-000783
Application 14/282,702

4
6. Frantz claims 9 and 10 recite methods of protecting dogs
against L. Bratislava with a vaccine administered intravenously, intranasally,
orally, intramuscularly, or subcutaneously and administered two or three
times with an interval of about 2–4 weeks between the administrations. (See
Frantz 39.)
7. Frantz teaches administration of two doses of a p68 vaccine to
dogs with an interval of about 2–4 weeks, preferably about 3 weeks,
between the two administrations. (Frantz ¶ 73, claim 11; see Ans. 7.)
8. Frantz does not expressly teach administering two oral doses of
vaccine. (See Ans. 9.)
9. Lauterslager teaches that mice can be primed by a number of
routes, including “orally,” with and without adjuvant, followed by a boost
immunization given orally. (Lauterslager Abstr; see Ans. 9.)
10. Lauterslager teaches that “[a]ll oral immunisations (primed
orally (PO)) were preceded by overnight fasting of mice (water was
provided ad libitum) and administered by intragastric intubation of 0.4 or 0.5
ml vaccine.” (Lauterslager 1392.)
11. Lauterslager teaches that titres of serum IgA were significantly
higher in mice boosted orally when the animals had been primed
subcutaneously, intraperitoneally, or intranasally compared to if they had
been primed orally. (See Lauterslager Abstr; see Ans. 9.)
12. Lauterslager teaches that systemic priming/oral boosting is a
strategy that has been known for several years. (See Lauterslager 1399; see
Ans. 10.)
Appeal 2021-000783
Application 14/282,702

5
Analysis
The Examiner determines it would have been obvious to one of
ordinary skill in the art at the time to administer the claimed vaccine orally
in both the first and second doses because Frantz teaches vaccine can be
administered to a dog by any known routes, including the oral, mucosal, and
parenteral (e.g., intravenous, intraperitoneal, intradermal, subcutaneous or
intramuscular) routes. (See Ans. 6–7, citing Frantz ¶¶ 71, 73.) The
Examiner finds further that Frantz teaches using a combination of routes,
giving the example of both a parenteral route and subsequent mucosal route.
(See id.) Although Frantz suggests any combination of vaccine routes, it
does not expressly teach or exemplify an oral priming vaccine followed by
an oral boosting vaccine, as Appellant argues. (See Appeal Br. 6–7.) That
is, Frantz would be insufficient as the only basis for an anticipation rejection
of claim 1.
The rejection before us is for obviousness, not anticipation. The
Examiner finds that Frantz would have suggested to one of ordinary skill in
the art to use two dose oral vaccine methods against CDV and other
infectious agents because Frantz presents claims drawn to protecting dogs by
administering therapeutically effective amounts of vaccine by an oral route
multiple times within an interval of 2–4 weeks. (See Ans. 7, citing Frantz
39, claims 10 and 11.)
The Examiner cites to Lauterslager to support the obviousness
rejection based on Frantz, finding that Lauterslager teaches that mice primed
“orally,” as well as by other routes, and then boosted “orally” provided some
level of immunity, if not as much as mice primed by another route. (See
Lauterslager Abstr, 1393–96.) According to the Examiner, Lauterslager
Appeal 2021-000783
Application 14/282,702

6
demonstrates that those in the art would have known that vaccination with
an oral prime and an oral boost can be effective, maintaining a steady level
of antibody. (See Ans. 10, citing Lauterslager 1398.)
Appellant argues that Lauterslager does not teach oral administration
of vaccine within the scope of claim 1. Lauterslager teaches oral
immunization through an intragastric tube, which Appellant argues would
by-pass the oral mucosa. (See Appeal Br. 9, citing Second Declaration of
Dr. Keith Ameiss, submitted September 17, 2019 (“Ameiss Decl.”), ¶ 9.)
Appellant’s Specification limits the term “oral” to “the introduction of a
substance, such as a vaccine, into a subject’s body through or by way of the
mouth and involves swallowing or transport through the oral mucosa (e.g.,
sublingual or buccal absorption) or both.” (Spec. 5.) In light of the
Specification, the broadest reasonable interpretation of the term “orally” in
Appellant’s claims excludes administration of a vaccine that does not
involve swallowing or transport through the oral mucosa. Thus, we agree
with Appellant that vaccine administered through gastric intubation, as
taught in the experiments of Lauterslager, is not “administered orally” as
recited in claim 1.
Nevertheless, we disagree that Lauterslager fails to provide any
support for the obviousness of Appellant’s claim 1 over the teachings of
Frantz. Although Lauterslager presents experiments using gastric
intubation, it explains that the “results are discussed in the light of the
development of edible vaccines.” (Lauterslager Abstr.) Furthermore, in
addition to the experimental data reported, Lauterslager discusses the
background of the field, wherein:
Appeal 2021-000783
Application 14/282,702

7
Oral vaccination is an attractive but not very efficient way to
induce immunity. Despite considerable effort, only few alive
oral vaccines are commercially available at this moment.
Several studies demonstrated that oral vaccination requires
multiple administrations of high doses of antigen, which
increases the production costs.

(Lauterslager 1391.) The meaning of the term “oral” in this part of
Lauterslager is not explained, but it is highly unlikely that the “attractive”
oral vaccinations discussed are administered through a gastric tube. Instead,
we find that the passage refers to edible vaccines the authors seek for
delivery to the gastro-intestinal tract. This background indicates that oral
vaccines, as recited in Appellant’s claims were known in the art and were
found to work, even if they required multiple administrations at high dose.
Such vaccines are within the scope of Appellant’s claim 1 because claim 1 is
not limited to any level of efficacy or dosage, other than being
“therapeutically effective.” We are persuaded that Lauterslager supports the
teachings of Frantz by showing that those of ordinary skill in the art would
have known that oral vaccines had been made and used to treat animals.
Appellant argues that oral vaccination is not an art-recognized
equivalent of a parenteral prime vaccination and that a response to a parental
prime vaccine administration cannot be used to reasonably predict the
response to an oral prime vaccine administration. (See Appeal Br. 6–7.)
Appellant characterizes the Examiner’s rejection as improperly replacing the
parenteral prime/oral boost of Frantz with the oral prime/oral boost regimen
of Lauterslager, as merely a less preferred alternative. (See Appeal Br. 7–8.)
We are not persuaded by Appellant’s argument because the
Examiner’s rejection is not based on a substitution, but rather on the
Appeal 2021-000783
Application 14/282,702

8
suggestion in Frantz of an oral immunization with two doses at an interval of
about 2–4 weeks. (See Frantz ¶¶ 71, 73.) The Examiner cited Lauterslager
to show that oral priming and boosting was not unknown in the art. (See
Ans. 9–10.)
Appellant argues that the Examiner improperly picks and chooses
words from Lauterslager and omits words that are contrary to it. (See
Appeal Br. 8.) Specifically, Appellant argues that the Examiner highlights
only the mention in Lauterslager of non-adjuvanted oral vaccine in support
of the finding that Lauterslager teaches priming orally with or without
adjuvant and subsequent oral booster. (See id.) According to Appellant,
Lauterslager only teaches non-adjuvanted oral vaccine as a booster
following parenteral prime vaccines. (See id.)
The contested portion of Lauterslager states:
This paper describes oral boost immunisations of primed
animals as an alternative oral vaccination strategy. Mice were
primed orally (PO), intranasally (IN), subcutaneously (SC), or
intraperitoneally (IP) with ovalbumin (OVA) with or without
adjuvant. Boost immunisations were given orally with or
without cholera toxin (CT) as adjuvant. Prime immunisations
induced variable IgA and IgG1 titres in serum depending on the
route. A subsequent oral boost increased these titres. Use of an
adjuvant in the priming significantly increased serum IgA and,
to a lesser extend, IgG1. Oral boost immunisation induced
significantly higher serum IgA titres in animals primed via the
SC, IP and the IN route compared to the PO route.

(Lauterslaper Abstr. (emphasis added).) Thus, “oral” priming with or
without adjuvant is presented as an option, along with others. We disagree
that “the Examiner picks the words that support her argument and omits the
words that are contrary to it” (Appeal Br. 8), because the overall approach of
Appeal 2021-000783
Application 14/282,702

9
Lauterslager is to investigate different combinations of vaccine
administration routes in the presence or absence of adjuvant to find optimal
oral vaccination strategies (see Lauterslager Abstr.). We are not persuaded
that any “picking and choosing” required in the Examiner’s rejection is
improper because both Frantz teaches oral administration of vaccines in a
two dose scheme separated by several weeks. (See Frantz ¶¶ 71, 73.)
Appellant argues that Lauterslager fails to demonstrate that
administration of an antigen to the oral mucosa elicits a sufficient immune
response. (See Appeal Br. 10.) Relying on a declaration by Dr. Ameiss,
Appellant argues that one of ordinary skill in the art at the time would have
known that there are immunological differences between the oral and nasal
mucosa and, thus, that there would be differences between the oral and
gastric mucosa. (See id., citing Declaration of Dr. Keith Ameiss, executed
September 27, 2018 (“First Ameiss Declaration”), Exhibit 2 (Allam et al.,
“Comparative analysis of nasal and oral mucosa dendritic cells,” ALLERGY
61:166–72 (2006) (“Allam”)).) Appellant concludes that in regard to CDV,
one of ordinary skill would not have considered there to be an equivalence
between oral and gastric mucosas. (See Appeal Br. 10.)
Appellant argues further that Lauterslager suggests that an oral boost
vaccination is unlikely to improve antibodies titers elicited by oral prime
vaccination, thus failing to provide a motivation for one of ordinary skill in
the art to use both an oral prime and an oral boost. (See Appeal Br. 11–12.)
Appellant refers to Dr. Ameiss’s testimony, but does not cite to a specific
portion of either of his declarations.
We are not persuaded by these arguments because Appellant’s claim 1
does not require any specific level of immunity or improved immunity after
Appeal 2021-000783
Application 14/282,702

10
an oral boost. Claim 1 is broadly drawn to methods of treating a dog with
the recited viral antigens and bacterins by administering vaccine in
therapeutically effective amounts as two doses spaced apart temporally.
(See Appeal Br. 19.) Frantz and Lauterslager demonstrate that two doses of
oral vaccine against the recited pathogens had been contemplated in the art
before Appellant’s filing date.
At oral argument, counsel asserted that Claim 1 requires “protective
immunity,” wherein a “protective titer is 1 to 32.” (See Transcript 8:1–7.)
Counsel continue to assert that a “regulatory requirement” is for “100
percent,” “but clearly patent does not have to comply with the requirements
of regulatory bodies. So I would say it clearly has to be at least 50 percent
to say that it works at least in terms of patent law rather than in terms of
regulatory law and . . . .” (Id. at 8:9–14.) Counsel seemed to assert that
claim 1 encompasses titers less than those that provide “protective
immunity.”
We note that Appellant does not provide an argument regarding claim
interpretation wherein the method of treating a dog must achieve a 1:32 titer
or any other specific titer in the briefs filed on appeal. Although the
examples in Appellant’s Specification and Dr. Ameiss refer to a “protective
titer” of 1:32 (see Spec. 14, 15; see First Ameiss Decl, ¶ 24), it is unclear
from counsel’s arguments on brief and at oral argument on what basis
Appellant contends that its claims are properly interpreted broadly as limited
to this level of immunity. Appellant’s claims do not recite a limitation on a
“titer,” providing only that a “therapeutically effective amount” of vaccine
must be administered. Appellant does not direct us to evidence that
“protective immunity” is the only therapeutically effective treatment.
Appeal 2021-000783
Application 14/282,702

11
Accordingly, we are not persuaded that Claim 1 requires a specific titer or
level of immunity.
We are similarly unpersuaded by Appellant’s arguments that there
would not have been a reasonable expectation of success because
Lauterslager teaches that antibody titers were not increased by an oral boost
when animals were primed through the oral route. (See Appeal Br. 11–12.)
Appellant argues that the Examiner has not explained how antibody titers
reported in the prior art correlate with neutralizing titers, but Appellant does
not direct us to evidence that claim 1 requires a neutralizing titer. (See
Appeal Br. 13.)
Appellant argues that the Examiner erred by “resting on the premise
that oral prime by itself elicits protective titer of neutralizing antibody.”
(Appeal Br. 12.) Appellant cites Dr. Ameiss’s testimony about an
experiment orally administering non-adjuvanted CDV vaccine on days 0, 21,
and 42, wherein four out of 10 dogs reached a protective titer after the first
administration and nine dogs reached a protective titer after the second
administration. (See id., citing First Ameiss Decl. ¶ 25.)
We are not persuaded that the Examiner relied on this “premise.”
Rather, the Examiner’s rejection is based on the knowledge in the art of two
oral dose vaccination schemes. Furthermore, although Dr. Ameiss testifies
that a single orally administered vaccine is not effective to protect against
CDV, he does not explain how the protection obtained in four dogs supports
this conclusion. (See id. ¶ 25.) We note also that even with a second
administration, one dog still failed to obtain a protective titer. Dr. Ameiss
fails to explain why four dogs reaching protective immunity after a single
dose indicates failure.
Appeal 2021-000783
Application 14/282,702

12
We note that Dr. Ameiss cited Pasetti6 regarding the mucosal immune
system (see First Ameiss Decl. ¶ 8), and Pasetti evidences that oral vaccines
were well known, teaching: “Licensed oral vaccines against polio, rotavirus,
S. Typhi, and V. choleare O1 are boased on robust technologies . . . These
vaccines have achieved considerable success in disease prevention and
control.” (Pasetti 2.) Pasetti notes that the typhoid vaccine may be given as
three or four oral doses (Pasetti 9), the cholera vaccines may be given as two
or three oral doses (Pasetti 11), and the Sabin oral polio vaccine may be
given as three oral doses (Pasetti 13). Thus, even the evidence cited by
Appellant’s expert supports the Examiner’s position that administering
multiple oral doses of vaccine was a well-known approach.
In general, Appellant’s claim 1 is broad, encompassing vaccination
targets with methods known in the art. Appellant does not direct us to
sufficient evidence of results that show the full scope of claim would have
been unexpected by a person of ordinary skill in the art when compared to
Frantz and Lauterslager. Dr. Ameiss testifies that “the fact that certain
antigens may elicit a protective immune response via a parenteral
administration is insufficient to confer a reasonable expectation that the
same antigen would also elicit similar response if administered orally in both
the prime and the boost vaccination,” (First Ameiss Decl., ¶ 19), but he fails
to discuss the specific teachings of Frantz in either of his declarations.
Appellant argues that Lauterslager teaches away from the claimed
method. (See Appeal Br. 13.) According to Appellant,

6 Pasetti et al., Immunology of Gut Mucosal Vaccines, Immunological Rev.
239(1):1–35 (2011).
Appeal 2021-000783
Application 14/282,702

13
The disclosure that the mucosal immune system is only capable of
maintaining antibody response suggests that the second oral
vaccination is unlikely to noticeably improve the results of the first
oral vaccination. Thus, if the response elicited by an oral prime
vaccination aren’t promising, as it was after the prime oral anti-CDV
vaccination, Lauterslager would have discouraged a person of
ordinary skill in the art from continuing with the experiment and
administering the oral boost vaccine. Therefore, Lauterslager teaches
away from the claimed invention.

(Appeal Br. 13–14.) The teaching in Lauterslager that Appellant relies upon
is that “mucosal immunization is not capable of boosting the immune
response to a high level, but rather to maintain antibody titres at a steady
level.” Lauterslager, 1389. A teaching that a second oral vaccination does
not improve the results of the first oral vaccination is not a teaching away,
particularly given that a second oral vaccination “maintain[s] antibody titres
at a steady level” and that Appellant’s claim 1 does not require an
improvement. Moreover, Lauterslager concludes that “significant local
responses can be induced by oral boost immunisation, provided that
multiple doses are given, which is in agreement with observations by
others.” Id. (emphasis added).
Appellant refers several times to the “unexpected results” discussed
by Dr. Ameiss in his declarations (see, e.g, Appeal Br. 9, 11, 15 (“Dr.
Ameiss’s Declarations underscore the unexpectedness of the results
discussed in these Declarations.”), but does not provide a direct citation to
such discussions. Dr. Ameiss refers to two references, which were not cited
by the Examiner in the rejections before us, testifying that one of ordinary
skill would not have expected protective immunity and that the results of
experiments with the claimed method were “surprising.” (See First Ameiss
Appeal 2021-000783
Application 14/282,702

14
Decl. ¶¶ 19–26.) We do not find a statement in either declaration comparing
the results obtained with Appellant’s claimed method to the closest prior art
or explaining why such results would have been unexpected to one of
ordinary skill in the art. Moreover, given the breadth of claim 1, the
experiment described in the Ameiss Declaration does not appear to be
commensurate with the scope of the claim. (See id.)
In the absence of persuasive evidence of unexpected results, we are
persuaded that given the breadth of Appellant’s claim 1, one of ordinary skill
in the art would have considered it obvious to treat a dog with the recited
viral antigens and bacterins by administering vaccine in therapeutically
effective amounts as two doses spaced apart temporally.
Appellant fails to persuade us that the method of claim 1 would not
have been obvious to one of ordinary skill in the art in light of the prior art
cited by the Examiner.

Claim 23
Claim 23 recites:
The method according to claim 1, wherein the composition is
nonadjuvanted.

(Appeal Br. 21.)
The Examiner cites the abstract of Lauterslager, which states: “Mice
were primed orally (PO), intranasally (IN), subcutaneously (SC),
orintraperitoneally (IP) with ovalbumin (OVA) with or without adjuvant.
Boost immunisations were given orally with or without cholera toxin (CT)
Appeal 2021-000783
Application 14/282,702

15
as adjuvant.” The Examiner bases the rejection of claim 23 on this positive
teaching in Lauterslager of vaccines without adjuvant.
Appellant argues that Lauterslager uses only an adjuvanted vaccine,
citing the methods used in the experiments reported. (See Appeal Br. 15–16,
citing Lauterslager 1392.) Appellant argues that Lauterslager reports:
“[r]epeated oral administrations with OVA without adjuvant was not strong
enough to induce detectable immune response in serum.” (Appeal Br. 16,
quoting Lauterslager 1397.)
We are not persuaded by Appellant’s argument because Lauterslager
was not cited for the specific results, but rather to demonstrate that one of
ordinary skill in the art would have known of methods of treatment by
administering two doses of oral vaccine. Lauterslager indicates that it was
known vaccines could be used in the absence of adjuvant. (See Lauterslager,
Abstr.) Frantz also demonstrates that nonadjuvanted canine vaccines were
known in the art. (See Frantz ¶ 3.) Because claim 23 does not require any
specific level of efficacy and Appellant does not direct us to unexpected
results in the absence of adjuvant, we are not persuaded that the Examiner
erred in rejecting it over the teachings of Frantz and Lauteslager.

35 U.S.C. § 112
The Examiner finds that express language of claim 23 does not appear
in the Specification or the original claims. (See Ans. 21–22.) The Examiner
also finds that the support cited by Appellant for claim 23 (page 13, lines 5–
6, page 9, lines 7–22, and page 1, lines 17–23) does not fully support non-
lyophilized compositions being non-adjuvanted. (See id.) Because claim 23
does not require a method of treating a dog with a non-lyophilized
Appeal 2021-000783
Application 14/282,702

16
composition, we review only whether Appellant’s Specification provides
sufficient support for a composition that is non-adjuvanted.
As Appellant argues, the Specification provides that “[l]yophilized
immunogenic compositions can be reconstituted prior to use in a stabilizing
solution, e.g., saline or/and HEPES, with or without adjuvant.” (Spec. ¶ 54;
see Appeal Br. 17.) Thus, we agree with Appellant that this limitation of
claim 23 supported by the Specification.
We are persuaded that the Examiner erred in rejecting the claim under
35 U.S.C. § 112, first paragraph, for lack of sufficient written description
support.
Conclusion
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejection.
In summary:

Claims
Rejected
35 U.S.C. § References/Basis Affirmed Reversed
1, 3–14, 16–
23
103(a) Frantz,
Lauterslager
1, 3–14, 16–
23

23 112, first
paragraph
Written
description
23
Overall
Outcome
1, 3–14, 16–
23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED