Appeal No. 2001-1586 Page 5
Application No. 08/402,394
since the method claims on appeal require the use of this compound. Also, nucleic acid
sequence claim 34, vector claim 35, host cell claim 36 and fusion protein claim 37,
would also be patentable if the compound of claim 33 is determined to be novel and
unobvious.
The examiner has relied upon Markussen ‘212 and Markussen EPO in the
alternative in stating the rejection of claim 33. The two Markussen patent documents
appear to be equivalent, or at the least, the examiner has not pointed to any significant
difference in their disclosures. As such, we shall limit our consideration of the issues
raised in this appeal to Markussen ‘212. In similar fashion, the examiner has not
distinguished in any meaningful sense between Grau ‘684 and Grau ‘332. Thus, we
shall limit our consideration of patentability of claim 33 in light of Grau ‘332.
As we understand the examiner’s position in regard to the patentability of the
compound of claim 33 it is as follows. Markussen ‘212 describes a genus of
mini-proinsulin precursors at column 2, line 63-column 3, line 18 as follows:
According to a first aspect of the present invention there is provided a
DNA-sequence encoding insulin precursors of the formula
B(1-29)-(Xn-y)m¯A(1-21) I
wherein Xn is a peptide chain with n amino acid residues, Y is Lys or Arg, n is an
integer from 0 to 33, m is 0 or 1, B(1-29) is a shortened B-chain of human insulin
from PheB1 to LysB29 and A(1-21) is the A chain of human insulin, with the proviso
that the peptide chain –Xn-Y- does not contain two adjacent basic amino acid
residues (i.e., Lys and Arg).
Preferred insulin precursors of the above formula I are B(1-29)-A(1-21),
i.e. m=0 in formula I, and compounds with a relative short bridging chain between
the B(1-29)- and the A(1-21)-chain.
When m=1, then n is preferably 1-33, more preferably 1-15, 1-8 or 1-5 and
most preferably 1-3 or 1-2. X may preferably be selected from the group
consisting of Ala, Ser and Thr, the individual X’s being equal or different.
Examples of such preferred compounds are B(1-29)-Ser-Lys-A(1-21) and B(1-
29)-Ala-Ala-Lys-A(1-21).
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