Appeal No. 1997-3461
Application No. 07/806,932
Claim 22 is illustrative of the subject matter on appeal and is reproduced below:
22. An isolated polynucleotide molecule encoding a human nm23 protein, said
polynucleotide molecule having a nucleotide sequence selected from the
group consisting of nm23-H1 (SEQ ID NO:2) and nm23-H2S (SEQ ID
NO:4).
The references relied upon by the examiner are:
Steeg et al. (Steeg I) 5,049,662 Sep. 17, 1991
Mullis et al. (Mullis) 4,683,195 Jul. 28, 1987
Steeg et al. (Steeg II)1 Re. 35,097 Nov. 21, 1995
Steeg et al. (Steeg III), “Evidence for a Novel Gene Associated With Low Tumor
Mestastatic Potential,” J. National Cancer Institute, Vol. 80, pp. 204-208 (1988)
Bevilacqua et al., (Bevilacqua), “Association of Low nm23 RNA Levels in Human
Primary Infiltrating Ductal Breast Carcinomas with Lymph Node Involvement and Other
Histopathological Indicators of High Metastatic Potential,” Cancer Research, Vol. 49,
pp. 5185-5190 (1989)
GROUNDS OF REJECTION2
Claims 22, 23, 25 and 26 are rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-4 of Steeg I in
view of Mullis.
1 Steeg II issued from Application No. 08/048,136, and is a reissue application of
United States Patent No. 5,049,662 (Steeg I).
2 We note the examiner withdrew the rejections over claim 24 in the examiner’s Answer.
We further note the examiner’s indication that claim 24 “is allowable as written” in the
examiner’s letter (Paper No. 34, mailed July 29, 1996).
2
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