Appeal No. 1997-0483
Application No. 07/648,900
According to the specification, "polypeptides of this invention are not species specific," ...
e.g., "a polypeptide having a structure identical to a functional fragment of rabbit
thrombomodulin will be effective to bind human thrombin" (p. 9, para. 3). Example 13
compares the sequences of rabbit, human and bovine CB3, specifically identifying which
residues are identical (p. 20). Figure 1 also compares the amino terminal sequences of
rabbit, bovine and human CB3 fragments (see Example 3, pp. 10-11). In addition, the
specification discloses that the invention include polypeptides which are not glycosylated
(p. 25, para. 2) and polypeptides which have been altered at their termini to provide
groups for cross-linking the polypeptide to the surface of an article (p. 8, para. 4 - p. 9,
para. 2). Thus, referring to the specification, we interpret "corresponds to" consistent with
its secondary dictionary definition, i.e., a "similar to."
In law, the "consisting essentially of" language renders the claims open for the
inclusion of ingredients which do not materially affect the basic and novel characteristics of
the claimed compositions. Atlas Powder Co. v. E.I. duPont de Nemours & Co., 750 F.2d
1569, 1574, 224 USPQ 409, 411 (Fed. Cir. 1984); accord In re Herz, 537 F.2d 549, 551-
52, 190 USPQ 461, 463 (CCPA 1976). In re Janakirama-Rao, 317 F.2d 951, 954, 137
USPQ 893, 895-96 (CCPA 1963). The seminal issue is what are the basic and novel
characteristics of residues 407 to 486 of a mammalian thrombomodulin as shown in
Figure 6 the claimed invention, i.e., of CB3. According to the specification, the 80 residue
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