Appeal No. 2004-0005 Page 4
Application No. 07/644,361
C-terminus of the c-erbB2 protein. Specification, page 41, lines 25-34. Samples were
analyzed by SDS-PAGE and autoradiography. Id., page 41, lines 35-38. Appellants
state that “[t]reatment of SKBR3 with TAb 250 resulted in #5-fold increase in the
phosphorylation of c-erbB-2. 32 p-labeled c-erbB-2 from cells treated with TAb 250 was
stable to base hydrolysis suggesting that phosphorylation was on tyrosine residues.”
Id., page 42, lines 22-26 (emphasis added).
Discussion
1. Enablement Rejection of Claim 9.
As explained on pages 4-6 of the Examiner’s Answer, the enablement rejection is
premised upon the examiner’s concern that hybridoma cell line HB 10646 has not been
deposited under the conditions set forth in 37 CFR §§ 1.801-1.809. Appellants did not
address this rejection in the Appeal Brief under the apparent assumption the rejection
would no longer be maintained by the examiner. This assumption was apparently
mistaken since the rejection appears in the Examiner’s Answer. In reviewing the
matter, it appears that this rejection has been overtaken by events outside of this appeal
proceeding. We refer to Shawver, which issued from an application stated to be a
continuation of this application, claims 2, 11, 20, and 26 of which specifically require the
use of TAb 250 (ATCC No. HB 10646).
Since appellants have gained allowance of claims similar to claim 9 in this appeal
in Shawver, it appears they have complied with the formal and legal requirements of
depositing HB 10646. Absent further explanation from the examiner as to which deposit
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