Appeal No. 2004-1346 Page 15
Application No. 08/971,338
pages 1-2 of appellant’s specification identify a variety of different biological
activities that are attributed to what appellant characterizes as a “growing
number of polypeptide factors … found to be structurally homologous to
transforming growth factor β (TGF-β).”
Thus, contrary to appellant’s assertion, it is our opinion that the examiner
provided the documentary evidence necessary to support her assertion.
II. TGF-β superfamily members play “a pivotal role” in embryonic processes:
Appellant asserts (Brief, page 8), “the Akhurst reference was published in
1990, which is the year that the earliest priority application to the present
application was filed.5 Therefore, the Akhurst reference is an appropriate
measure of what was known in the art relating to transforming growth factors at
the time the application was filed.” As set forth in In re Hogan, 559 F.2d 595,
605, 194 USPQ 527, 537 (CCPA 1977), emphasis original, “use of later
publications as evidence of the state of art existing on the filing date of an
5 This application claims priority through a series of continuing applications to Application No.
07/538,372, filed June 15, 1990. See Answer, page 23, “[a]ppellant is relying upon the filing date
of the ultimate parent application, 07/538,372, filed 6/15/90.”
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