Appeal 2007-0746
Application 10/139,496
In their Appeal Brief, Appellants do not argue their Specification is
enabling. (See Br. passim.3) Rather, they rely on a biological deposit:
Appellants deposited murine hybridom[a]-mouse (BalbC)
spleen cells/SP-2.0 myeloma: KHRI-3 to the ATCC,
Manassas, VA, on October 18, 2005. The deposit was
accepted and assigned Patent Deposit Designation PRA-
7169, February 18, 2006.
It is respectfully submitted that Appellants' agreement to
deposit hybridoma cells that produce KHRI-3 monoclonal
antibodies renders the Examiner's arguments moot.
Appellants respectfully request that the rejection be
withdrawn.
(Br. 6-7.)
Given these conflicting positions of the Examiner and Appellants, we
frame the enablement issue as follows: Have the Appellants satisfied the
enablement requirement of § 112, ¶ 1, by meeting the biological deposit
requirements of 37 C.F.R. §§ 1.801-.809?
Findings of Fact Relating to the Deposit Issue
1. “Appellants deposited murine hybridom[a]-mouse (BalbC) spleen
cells/SP-2.0 myeloma: KHRI-3 to the ATCC, Manassas, VA, on October 18,
2005.” (Br. 6. See also ATCC International Form.)
2. “The deposit was accepted and assigned Patent Deposit
Designation PRA-7169, February 18, 2006.” (Br. 7. See also ATCC
International Form.)
3 In their Reply Brief, Appellants state, without citation to the record:
“[T]he specification clearly describes reproducible methods to make KHRI-
3 antibody. Thus, one of skill in the art, utilizing teachings of the present
invention, is able to reproducibly generate KHRI-3 antibody.” (Reply Br.
8.) We disagree with this statement but otherwise do not address the merits
of the enablement rejection.
5
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