Appeal No. 95-1463
Application No. 07/779,704
Gassmann discloses a series of overlapping octapeptides
representing the entire sequence of Borrelia burgdorferi
flagellin protein. In Figure 7 and in the accompanying text
at page 1458, column 1, first full paragraph, Gassmann focuses
attention on amino acids 180-260 in the sequence. At best,
Gassmann constitutes an invitation for a person having
ordinary skill to explore "this region," defined by amino
acids 180-260, in search of a suitable diagnostic
oligopeptide. Note these statements in Gassmann: (1) "This
region could constitute a candidate antigen for more specific
and sensitive serodiagnosis of Lyme borreliosis" (Gassmann,
abstract, last sentence, emphasis added); and (2) "this region
might therefore be suitable for synthesis of a longer,
diagnostic oligopeptide" (Gassmann, page 1458, column 1, first
full paragraph, emphasis added).
In our judgment, the Gassmann reference constitutes
insufficient evidence to support a conclusion of obviousness
of claim 9, drawn to recombinant fusion protein p776, or claim
10, drawn to recombinant fusion protein p410. The proteins
p410 and p776 represent amino acids 137-262 and 64-311 of the
Borrelia burgdorferi sequence, respectively (specification,
-4-
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