Appeal No. 2001-1900 Page 3
Application No. 08/981,700
the “modifier” materially changes the fundamental character
of the three-ingredient composition….
Accordingly, we agree with appellants’ interpretation of the claimed
invention (Specification page 2), “the invention encompasses proteins having
exactly the same amino acid sequence as shown in the figures, as well as
proteins with differences that are not substantial as evidenced by their retaining
the basic, qualitative ligand binding properties of GAL-R2.” See also,
Specification page 6.
The evidence on this record demonstrates that the claimed receptor is
different than the receptor taught by Shuji. Therefore, Shuji cannot anticipate the
claimed invention. Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236, 9
USPQ2d 1913, 1920-21 (Fed. Cir. 1989) (“anticipation” requires that the identical
invention is described in a single prior art reference). Accordingly, the rejection
of claims 1, 13, 37, and 39 under 35 U.S.C. § 102(b) as anticipated by Shuji is
reversed.
REVERSED
William F. Smith )
Administrative Patent Judge )
)
) BOARD OF PATENT
Donald E. Adams )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
Lora M. Green )
Administrative Patent Judge )
Pillsbury, Madison & Sutro LLP
Intellectual Property Group
1100 New York Avenue, NW
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