Appeal No. 1996-1281
Application 07/945,295
specification as relating to human antigens associated with certain autoimmune
pathogenesis including inflammatory myopathies polymyositis and polymyositis-
scleroderma overlap, which are characterized by chronic muscle inflammation and
proximal muscle weakness in patients. These antigens are designated Mi-2 antigen
and PMScl antigen and are stated to be useful in diagnostic assays and as tools for
studying autoimmune myositis.
Discussion
The rejection under 35 U.S.C. § 112, second paragraph
In a new ground of rejection raised in the Examiner's Answer (Answer), the
examiner has rejected claims 11 - 15 and 26 stating (Answer, paragraph bridging pages
6-7):
[I]t is not clear if the claimed isolated protein is to have the sequence as
set forth in SEQ ID NO. 2 or can have that sequence as well as other
amino acid residue sequences so long as the isolated protein contains at
least one portion of the amino acid residue sequence of the human Mi-2
protein which has the amino acid residue sequence as set forth wherein
said "portion" includes at least one epitope. The basis for this confusion
seems to stem for [sic, from] the varying uses of titles to identify the
protein and the antigen.
We have considered the arguments of both the examiner and the appellants relating to
this rejection and find we are in agreement with the appellants that the rejection is
improper. We, therefore, reverse the rejection under 35 U.S.C. § 112, second
paragraph, and adopt appellants' reasoning at page 3 of the Reply to Examiner's
Answer as our own.
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