Appeal No. 1999-0339
Application 07/903,588
Thus, we find that the procedure described in Bièche differs from that required
by claim 1 in only one significant aspect-- claim 1 requires that the abundance of the
met DNA present in tumor breast tissue be compared with the abundance of met DNA
present in normal tissue from the same breast.
As to the referenced difference, we agree with the examiner that the one of
ordinary skill in the art at the time of the present invention would have found it obvious
to compare the loss of heterozygosity at the c-met proto-oncogene with any normal cell
or tissue type which expresses c-met, which would include normal breast tissue. The
critical issue here being that Bièche demonstrates that it is the loss of heterozygosity in
tumor DNA which is associated with poor prognosis. The only way to demonstrate said
loss is by comparison with DNA from a normal cell or tissue which is known to express
the c-met proto-oncogene.
The appellants argue that Bièche conclude that their studies show loss of
heterozygosity on chromosome 7q and that the cause of the loss of DNA fragments is
unknown. Brief, pp. 5-7. The appellants contend that since any portion or number of
genes on chromosome 7 might have been lost along with the met gene, the teachings
of Bièche do not suggest that the met gene itself was involved in breast cancer. Id., p.
7. The appellants rely on the declaration of Dr. Michael Dean (attached to the Brief as
Exhibit B) for support. We find this argument and the declaration unpersuasive.
First, although Bièche frequently refers to the loss of heterozygosity or a deletion
on chromosome 7q31, it is also stated in the publication that said loss reflects a
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