Appeal No. 1999-0623
Application No. 08/316,802
Claim 28:
The examiner states (Answer, page 4) that “[i]n claim 28 ‘and other (or
another) ionizable peptide forming D-amino acids’ is vague; which ones?” In
response appellant provides an argument to this rejection (Brief, pages 13-14)
which includes a reference to United States Patent No. 5,255, 518 (‘518). Claim 19
of ‘518 recites “… wherein said repeating unit having a ß-turn comprises a
polypentapeptide unit of formula: -(VPFd)- wherein … F is a peptide-forming
residue selected from the group consisting of … and other ionizable peptide
forming D-amino acid residues.”
The examiner argues (Final Rejection, page 3) that “[a]pplicant also contend
that the phrase ‘ionizable peptide forming amino acids’ is not vague, referring to a
passage disclosing Glu, Asp, Lys and His. It appears, then, that the phrase is
superfluous because these amino acids are already recited for theta and delta in
claim 28.” Appellant refers to pages 12 and 13 of the specification to support his
position that the claim is definite. At page 13, in addition to referring to Glu, Asp,
Lys, and His (lines 26-27), appellant explains (lines 30-36) that:
It is also possible to attach a moiety containing a functional group that
undergoes a transition under conditions different from those
attainable for naturally occurring amino acid side chains. For
example a sulfate ester of Ser can be prepared in which sulfate
ionizations will occur at a pH outside the range experienced by
carboxylate groups.
The examiner is silent with respect to appellant’s arguments. Again, it is
unclear to us why the examiner maintains that the phrase is vague in view of
appellant’s specification, arguments and cited prior art (made of record as
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