Wednesday, January 10, 2007

Citable No. 57: "ARMED ANTIBODIES" Merely Descriptive of Biopharmaceutical Goods and Services, Says TTAB

[This citable decision, dated June 23, 2006, is the second of two citable decisions that eluded me last summer. My apologies to TTABlog readers.] In a citable decision, the Board affirmed a Section 2(e)(1) refusal to register the mark ARMED ANTIBODIES, finding it merely descriptive of "biological preparations for use in the manufacture of biopharmaceutical and biotechnology products" (Class 1), of "antibodies and recombinant fragments thereof for medical diagnostic use in the treatment of cancer" (Class 5), and of "research and product development services in connection with the biopharmaceutical and biotechnology industries" (Class 42). In re Viventia Biotech Inc., 80 USPQ2d 1376 (TTAB 2006).

Nearly 5 pages of the Board's 13-page decision comprised a long quotation from the online publication called "Signals," which the Board found to be "particularly instructive about the use of antibodies, and the development of 'armed antibodies,' in the treatment of cancer." Examining Attorney Yong Oh (Richard) Kim also submitted other articles and web pages.

"The evidence ... shows that linking antibodies to such agents as radioisotopes or chemotherapeutic compounds or toxins is referred to as 'arming' them, and that the resulting antibodies are referred to as 'armed antibodies.'"

Applicant Viventia pointed out that, in these articles, the term at issue is used by the authors of the articles, "rather than by the biotech or drug companies whose products are discussed in the articles." Nonetheless, according to the Board, that did not make the articles any less persuasive: "the readers of the articles will understand the meaning of the term, or else the authors would not have used the term." Moreover, the articles cited are found "on the websites of institutions that deal with health care matters." And at least one competitor website used the term in a "descriptive/generic "manner.

The Board concluded that ARMED ANTIBODIES immediately conveys significant information about the goods and services." The Class 1 goods "can encompass preparations that are used to make armed antibodies." As to the class 5 goods, "the very identification shows that they are antibodies." And Applicant's identified services are "broad enough to encompass research and product development services in which armed antibodies are a central characteristic or subject matter."

The Board therefore affirmed the Section 2(e)(1) refusal.

Text Copyright John L. Welch 2007.


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