Appeal 2007-0746
Application 10/139,496
3. Appellants have not identified any submission containing “a
statement from a person in a position to corroborate the fact, stating that the
biological material which is deposited is a biological material specifically
identified in the application as filed.” 37 C.F.R. § 1.804(b). (See Br. passim
& Reply Br. passim.)
4. In spite of making their deposit on October 18, 2005, Appellants
have not yet submitted an amendment to their Specification to satisfy the
requirements of 37 C.F.R. § 1.809(d) (2006).
Discussion of the Deposit Issue
We affirm the Examiner’s rejection under § 112, ¶ 1, based on
Appellants’ failure to perfect their deposit. See Findings 3 and 4 above. If
Appellants submit the appropriate documents and thereby satisfy
requirements of 37 C.F.R. §§ 1.801-.809, this ground of rejection should be
withdrawn.
PATENTABILITY UNDER §§ 102(b) AND 103(a)
The §§ 102(b) and 103(a) Issue
Our determination of both patentability issues turns on whether Zajic
isolated and identified the same glycoprotein as the “immunopurified
glycoprotein” claimed by Appellants (See Br. 7-12; Reply Br. 4-7.)
According to the Examiner: Zajic “teaches the immunoprecipitation
and Western blotting of guinea pig-inner ear organ of corti tissue, wherein
KHRI-3 binds a glycoprotein that is about 65,000 to 68,000 daltons (about
broadens the claim to include other proteins of similar size) under non-
reducing conditions (see pages 62-64 and Fig. 4). . . .” (Answer 5.) As
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