Appeal No. 1996-1916
Application 07/912,122
of the first paragraph of § 112 unless there is reason to doubt the objective
truth of the statements contained therein which must be relied on for enabling
support.
In this case, the specification teaches a number of uses for the claimed DNA and
protein (pages 3 and 6):
Nucleic acid encoding [Flk-2] may be obtained from host hematopoietic
stem cells by using as a probe, at least twelve, usually at least eighteen,
nucleotides of the subject sequence. The subject sequence, which is the
mouse sequence, may be used to identify other mammalian analogs by
hybridiz[ation] . . .
The cDNA may be used for expression of the [Flk-2] in any convenient
expression host . . .
* * *
The subject proteins find use in culture and in vivo in competing with Flk-2
receptor for Flk-2 ligand. Thus, the subject compositions may be used for
modulating the growth of hematopoietic progenitor cells. In addition, the
subject proteins or fragments thereof of at least about 12 amino acids . . .
may be used for the production of antibodies . . . Particularly, the soluble Flk-
2 may be used to produce antibodies which are specific for the juncture or
sequences proximal to the juncture between about amino acids 680 and 700
. . . The antibodies may be used for identifying cells carrying Flk-2, removing
soluble Flk-2 from culture fluids or natural fluids, purifying Flk-2, and the like.
The antibodies may also be used for assaying for the presence of Flk-2.
Thus, the dispositive issue is whether the examiner has met the initial burden of
establishing a reasonable basis to doubt the objective truth of statements in the
specification regarding the use of the claimed DNA and protein.
As further stated in In re Marzocchi, 439 F.2d 220, 224, 169 USPQ 367, 370
(CCPA 1971):
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