Appeal No. 1995-1977
Application 07/669,403
This argument is also not persuasive, because the record contains no
evidence connecting the definition given by Piedrahita in his thesis with the work
described in the relied-on Piedrahita reference. That is, there is no evidence in
the record showing that Piedrahita considered the term “embryonic stem cell-
like,” as used in the relied on reference, to have the definition that was provided
in the thesis. Thus, the thesis does not show that the cells in the relied-on
Piedrahita reference did not have pluripotential capability.
Appellants’ reliance on Piedrahita’s later-published research article
(referred to as “Piedrahita II” in the Appeal Brief) is also misplaced. Appellants
argue that in that article, Piedrahita reported failure to induce differentiation in
vitro of porcine embryo-derived cell lines having a morphology similar to mouse
ES cells. Appellants’ argument fails because, again, there is no evidence in the
record to indicate that the cell lines that were reported not to differentiate in the
later research article are the same as the cell lines disclosed in the relied-on
Piedrahita reference. The later research article does not refer to the cell lines by
the designations given in the relied-on reference (P3, G8, etc.). In addition, the
relied-on reference does not indicate that the cell lines disclosed therein have “a
morphology resembling that of murine ES cells,” like the cells that failed to
differentiate in the later article. Therefore, the evidence of record does not show
that the results reported in the later article apply to the cells disclosed in the
relied-on reference.
Finally, Appellants have submitted a declaration under 37 CFR § 1.132 by
Martin J. Evans, one of the inventors of the instant application. In his declaration,
not cited on a Information Disclosure Statement, and we find no copy of the thesis in the file. We
find it unnecessary to return the application to the examiner to resolve the issue, however, since
even if Appellants’ characterization of the thesis is accepted, it fails to show that the rejection is
erroneous.
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