Appeal No. 1997-2319
Application No. 08/147,707
the high-affinity IL-7 receptor, but concludes that it is not enabling “for methods of
making CD34-, CD38- and/or high-affinity-IL7R- cells.” Examiner’s Answer, page 3. We
find this aspect of the rejection to be without merit, as the examiner has not explained
why a cell which does not test positive for CD34, e.g., would or could not be identified
as negative for that marker, and isolated on that basis.
In a similar vein, the examiner concludes that the specification is not enabling
for “methods involving separation based upon expression of the low affinity IL-7
receptor.” According to the examiner, “two distinct IL-7 receptors are known in the art,”
but “the disclosure makes reference to only one” and “does not particularly indicate
which of the two IL-7Rs known in the art is the subject of teachings concerning ‘IL-7R’.”
This is inconsistent with the examiner’s concurrent conclusion that the specification is
enabling for “making” cells that are positive for the high-affinity IL-7 receptor.
Examiner’s Answer, page 3. Moreover, the examiner has not explained why one
skilled in the art would not be able to identify and/or isolate cells based on the low-
affinity IL-7 receptor, since, as acknowledged by the examiner, both high and low
affinity receptors were known in the art at the time of filing. Accordingly, we find this
aspect of the rejection to be without merit as well.
Finally, the examiner concedes that the disclosure is enabling for using CD34+,
CD38+, high-affinity-IL7R+ cells since “such cells are lymphoid-committed” and one
“would readily appreciate that a population of lymphocytes . . . would be useful, for
example, to reconstitute lymphocyte populations in immunocompromised patients.”
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