Appeal No. 94-3676
Application 07/949,327
possessed by members of the genus that distinguish them
from others.
We suggest that the examiner carefully consider whether
the teachings of Higashi (1983), Leung (1984), and Capon
(1985) are material to the subject matter appellants now
claim. If the references are material, the examiner should
determine the effective filing date of the claimed subject
matter, i.e., the filing date of the earliest application
which would have both described and enabled the full scope of
the claimed subject matter, so to establish whether Higashi,
Leung, and Capon are prior art with respect to the subject
matter claimed. After considering the highlighted new matter
in the various specifications of appellants’ earlier
applications (the highlighted prior specifications were filed
April 11, 1997, in response to an Order entered April 9,
1997), we find that Application 07/104,461, filed October 2,
1987, is the first application to describe the amino acid
sequences of rabbit and porcine interferons and the
corresponding DNAs which encode those amino acid sequences.
Therefore, the effective filing date of all claims which are
directed to DNA which encodes rabbit and porcine interferons
is October 2, 1987. That is not to say that the full scope of
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