Appeal No. 1997-3020
Application 08/149,101
Claim 1 recites a hybrid cytokine comprising 1) four "-helical regions, wherein the
four "-helical regions are derived from the corresponding "-helical region of a factor
selected from the group consisting of leukemia inhibitory factor (L), granulocyte-colony
stimulating factor (G), interleukin-6 (I), interleukin-11 (E), ciliary neurotrophic factor (C) and
oncostatin-M (O), and 2) three linking sequences, the linking sequences selected from at
least a portion of one or more linking sequences from any of the foregoing cytokines. At
least one of the "-helical regions of the hybrid cytokine is derived from a factor different
from that of the other "-helical regions.
The specification describes the hybrid cytokines as being useful in treating
“indications for which their native counterparts are often employed.” See lines 22-23 on
page 13 of the specification. The native counterparts used to make the hybrid cytokines
as well as certain of their activities and uses are described on pages
1 through 3 of the specification.
In initiating and maintaining the rejection of the claims under 35 U.S.C. § 112, first
paragraph, it does not appear that the examiner has considered the relevant legal
standards which govern the issue of enablement. As a consequence, the requisite factual
analysis has not been undertaken by the examiner. For example, the examiner has not
presented a reasoned analysis of the state of the prior art in regard to the known uses of
the native cytokines which are used to make the hybrid cytokines of the invention. Such an
analysis is needed since the specification need not disclose what is well known in the art.
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