Appeal No. 1999-2231
Application No. 08/278,774
Claims 6 and 7:
According to appellants (Brief, page 5):
[c]laims 6 and 7 further limit claim 1 to require a second
propeptide and a second non-natural site-specific proteolytic agent
recognition site located between the collagen chain and the second
propeptide. As there is no suggestion whatsoever in the cited art of
using a second recognition site and a second propeptide, the
rejection of claims 6 and 7 under 35 U.S.C. [sic]
[§] 103 is improper.
Initially, we note that the examiner failed to address these limitations in his
statement of the rejection (Answer, page 3). Further, while explaining how the
combination of Chu, Prockop and Olsen in view of Carter meet the limitations of
claims 1, 2, 3, 8, 9, 14-16 and 18, the examiner states (Answer, page 5) that
“[t]he same is true of claims 6 and 7 where the C-terminal propeptide and the
second propeptide could be located at either end of the collagen, or the two
propeptides could both [be] located at one end of the collagen [chain].” The
examiner, however, fails to identify a suggestion in the art to prepare such a
construct.
As discussed above, we agree with the examiner that, in view of the
combination of prior art relied upon it would have been prima facie obvious at the
time the invention was made to prepare a collagen chain fusion that is
substantially the same as the native procollagen molecule but for the presence
of a “non-native” site-specific proteolytic agent recognition site located between
the collagen chain and the propeptide, as set forth in claims 1, 2, 3, 8, 9, 14-16
and 18. We agree with the examiner that, in view of the combination of prior art
relied upon a person of ordinary skill in the art would recognize that such a
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