Appeal 2007-2864
Application 10/747,798
As noted by the Examiner, citing Flaitz at page 452, column 1,
(Answer 11), “squamous cells are keratinocytes, and HPV is trophic for
squamous cells and is capable of replication only in squamous cells.”
Appellant responds that most of the oral cavity is lined by nonkeratinized
squamous epithelium, and not keratinocytes, and that “[b]ecause squamous
cells are not necessarily keratinocytes, there is no inherent anticipation.”
(Reply Br. 5.)
Appellant has provided no evidence to rebut Flaitz to support the
assertion that most of the oral cavity is lined by nonkeratinized squamous
epithelium, and arguments of counsel cannot take the place of evidence in
the record. In re Scarbrough, 500 F.2d 560, 566, 182 USPQ 298, 302
(CCPA 1974). In addition, we also cite the Online Merck Manual, Home
Edition,2 for its teaching that “[s]quamous cells (keratinocytes) are the main
structural cells of the epidermis. Squamous cell carcinoma usually develops
on sun-exposed areas but may grow anywhere on the skin or in the mouth,
where sun exposure is minimal.” Thus, we find that keratinocytes would be
present on the inside of the mouth, and thus, the method of Clayman, which
requires topical application of a mouthwash, anticipates claim 4.
As to claim 6 which further limits the papillomavirus-transformed cell
to a skin cell, Appellant argues that Clayman pertains to the treatment of the
oral cavity, which is not lined by skin cells (Br. 8).
Our mandate is to give claims their broadest reasonable construction.
In re American Academy of Science Tech Center, 367 F.3d 1359, 1364, 70
U.S.P.Q.2d 1827, 1830 (Fed. Cir. 2004). “An essential purpose of patent
2 www.merck.com/mmhe/sec18/ch216/ch216c.html, accessed September 14,
2007.
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