Appeal No. 1998-0667 Page 5
Application No. 081280,306
As explained at page 8, lines 8-10 of the specification, "[t'he term 'exogenous
material' as used herein means material other than wild type papovavir~~snucleic acid.
Preferably, the material is genetic material, for example DNA." The exogenous material
may be a protein or other polypeptide, or any pharmacologically active compound.
See, e.g., page 8, lines 21-23 of the specification. The phrase "associated with" as
used in the claimed invention is defined at page 5 of the specification as follows:
By the exogenous material being 'associated with' the pseudocapsid, we
mean that the material is protected thereby. For example, exogenous
DNA will be protected from degradation by DNases such as DNasel, and
exogenous protein will be protected from proteases. The exogenous
material can be enclosed within an empty pseudocapsid or otherwise
wrapped up with the capsid antigen.
As seen from claim 2 on appeal, one embodiment of the present invention
involves the,situation where the exogenous material functions in the host cell to the
extent that it has a "therapeutic effect" on a multi-cellular organism containing that cell.
In other words, one embodiment of the present invention involves the art area known as
"gene therapy." See, e.g., specification, page 13, lines 4-34.
Discussion
1. Enablement.
We first express our concern about the anomalous situation confronting us
where dependent claims 2-5 are rejected as being non-enabled while claim 1, the
independent claim from which these claims directly or indirectly depend, is not rejected.
It has long been held that a claim must be enabled throughout its scope. In re Vaeck,
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