Appeal No. 2000-1919
Application No. 08/831,993
medium, the numbers presented in the Table may equally reflect
extracellular effect of the peptide on the parasite (i.e. described in
the prior art), or inhibition of intracellular development of the
parasite (i.e. asserted in the application). No evidence for the latter
is provided.
The examiner was also unimpressed by the second working example.
See the Examiner’s Answer, page 5:
Turning to Example 2, the uniformly overexposed image of a cell
stained with antibody against magainin 2 . . .reflect[s] one of three
possibilities: 1) stained magainin is located outside the cell; 2)
stained magainin is bound to the plasma membrane (as suggested
by the prior art, see above), or 3) stained magainin is located inside
a cell. Again, no evidence for the latter is offered.
The examiner cited an additional basis of non-enablement for claims 1
and 11. These claims read on using any of three classes of peptides—
magainins, PGLa or XPF peptides—in the claimed method, but the working
examples in the specification are limited to magainins. The examiner concluded
that the specification does not enable the full scope of these claims because it
“does not provide guidance on how to use PGLa or XPF peptide, how to select
effective concentration for PGLa vs XPF peptide vs magainin. Therefore,
insufficient guidance exist[s] in the specification to enable a person of ordinary
skill in the art to practice the invention without the need for undue
experimentation.” Examiner’s Answer, page 5.
Appellant argues that “[t]he application provides all the teaching necessary
for one skilled in the art to practice the invention without undue experimentation.”
Revised Appeal Brief, page 3. In support, Appellant has submitted a declaration
under 37 CFR § 1.132 by Steve Ludtke. Dr. Ludtke states that, in his opinion,
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