Appeal 2007-3881
Application 09/833,782
record adequately shows that SEQ ID NO: 2 is likely to share neurolysin’s
activity.
The Specification states that SEQ ID NO: 2 “shar[es] sequence
similarity with mammalian neurolysin proteins” (Spec. 1: 10-11); that
neurolysins are metalloproteases that “cleave protein substrates such as
angiotensin and neurotensin” (id. at 1: 24-26) and have been implicated in a
number of diseases; and that “neurolysins can act as therapeutics as well as
drug targets (id. at 1: 29-30). The Specification does not disclose that SEQ
ID NO: 2 is similar to any protein other than neurolysin or disclose any other
function or activity that it is likely to have. In view of the Specification’s
focus on neurolysin and the disclosure that SEQ ID NO: 2 shares structural
similarity with known neurolysins, we agree with Appellants that those
skilled in the art would have understood the Specification to disclose that
SEQ ID NO: 2 is a neurolysin and likely to share the activity of other,
known neurolysins.
We also agree with Appellants that the evidence of record does not
support the Examiner’s position that the structural similarity between SEQ
ID NO: 2 and other neurolysins is unlikely to translate into functional
similarity.
Appellants rely on a GenBank entry as evidence that SEQ ID NO: 2 is
human neurolysin (Br. 4-5). The GenBank entry is post-filing evidence and
therefore can be relied on only to support an assertion in the Specification,
not to add substantively to the Specification’s disclosure. See In re Hogan,
559 F.2d 595, 605 n.17 (CCPA 1977). In this case, the GenBank entry can
be relied on to support the implicit assertion in the Specification that SEQ ID
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