Appeal 2007-0628
Application 10/225,082
be expected to be released from the cells in which it was expressed and be
detectable in CSF or serum.
The Examiner argues that CSF is “a sample of the same type as brain
tissue because CSF and brain tissues are within the same system in the body
and one of ordinary skill in the art would expect markers which are known
to be within the brain tissue would also . . . be contained within CSF”
(Answer 12). The Examiner cites Vander,5 Webster’s,6 and Jackowski as
show[ing] that CSF and brain tissue clearly are within the same
system in the body and particularly Jackowski shows that
proteins that are released by brain cells during a cerebral event
can be detected in cerebrospinal fluid. Thus, since the prior art
teaches the equivalence of brain tissue and CSF as samples for
markers related to cerebral ischemia. It would have been
obvious to one of ordinary skill in the art at the time the
invention was made to expect the markers which are known to
be within the brain tissue to also be in CSF.
(Id. at 13.)
We do not agree with the Examiner’s reading of the cited references.
Webster’s merely defines “tissue” as an “aggregation of morphologically
and functionally similar cells”; it does not provide any basis for concluding
that brain cells and CSF meet that definition. Vander teaches that CSF
surrounds the brain, but does not teach that the contents of brain cells are
found in CSF.
Jackowski is more relevant to the Examiner’s argument, in that it
teaches that myelin basic protein, S100, and neuron-specific enolase are
“released by the specific brain cells as the cells become damaged during a
5 Vander et al., Human Physiology, 6th ed., pp. 214-215, 230 (1994).
6 Webster’s II, New Riverside University Dictionary, p. 1212 (1994).
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