Appeal No. 2007-0083
Application No. 10/174,574
3. ANTICIPATION BY TANG
Claims 25-29, and 35 stand rejected under 35 U.S.C. § 102(a) or
§ 102(e) as anticipated by Tang.5
The Examiner argues that
Tang et al. teaches of an antibody [that] binds to [a] protein.
The protein of Tang et al., SEQ ID NO:2374 has 100 % identity
to the entire full sequence of claimed SEQ ID NO:32. The
antibody taught by Tang et al. includes a monoclonal,
humanized, antibody fragment, and labeled. Therefore, Tang et
al. anticipates the claimed invention.
(Answer 5-6.)
Appellants do not dispute that Tang discloses a polypeptide having the
amino acid sequence of SEQ ID NO:32 and antibodies that specifically bind
to it. Rather, Appellants argue that Tang was published after the earliest
priority date claimed for the instant claims, and is therefore not prior art.
(Br. 12.)
We will affirm the rejection. “It is elementary patent law that a patent
application is entitled to the benefit of the filing date of an earlier filed
application only if the disclosure of the earlier application provides support
for the claims of the later application, as required by 35 U.S.C. § 112.” In re
Chu, 66 F.3d 292, 297, 36 USPQ2d 1089, 1093 (Fed. Cir. 1995).
For the reasons discussed above, neither the instant application nor
any of the earlier-filed applications discloses a utility for the claimed
antibody sufficient to satisfy the requirements of § 101. Ipso facto, none of
5 Tang et al., WO 01/57188, published August 9, 2001.
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