Appeal No. 2001-2524 Page 3
Application No. 08/369,295
than 10”, in the absence of setting any upper limit to the
number of amino acids in the peptides presently recited in
the claims. By reciting “more than 10 amino acids” claims
are essentially disclosing a range having only a lower limit
(of 10 amino acids) but no upper limit. Peptides
encompassing such a range of amino acid length[s] are not
adequately supported by the specification disclosure.
In response appellant argues (Brief, page 7), “the recitation of ‘ten or more
amino acid residues from the conserved exposed region’ does not admit an
unlimited number of amino acids in the claimed peptide, because the conserved
exposed region is approximately 130 amino acids long….” We agree. Claims 54
and 55 depend from claim 40 which requires that that antigen conjugate
comprise, inter alia, “a polypeptide which consists of five or more amino acid
residues from the conserved exposed region of the M protein of group A
streptococci….” Therefore, contrary to the examiner’s position, since the
“conserved exposed region” is approximately 130 amino acids long, there is an
upper limit on the number of amino acids in the M protein polypeptide
component of the conjugate.
While appellant concedes (Brief, page 7) “that neither the present
specification nor the original claims specifically recite peptides of ‘ten or more’
[claim 54] or ‘10-22’ [claim 55] amino acids … [appellant argues] the test for
adequacy of the written description is not that the claimed subject matter be
described literally in the specification….” According to appellant (Brief, page 6)
“the present specification, on page 11, specifically exemplifies peptides of 10-22
amino acids … [and both] [t]he specification and original claims recite peptides of
at least 5 amino acids from the conserved exposed region of the M protein….”
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