Appeal No. 2001-0869 Page 13
Application No. 08/453,347
have been genetically engineered to express JE/monocyte
chemoattractant protein-1 when present in the mammal.
2. A method of Claim 1, wherein the tumor killing cells are tumor
infiltrating lymphocytes.
As can be seen, the only difference between instant claims 1 and 2 and
claims 5 and 6 of the ‘078 patent, respectively, is that the instant claims
expressly require that the administered cells “have been genetically engineered
to express JE/monocyte chemoattractant protein-1 when present in the
mammal,” while claims 5 and 6 simply state that the cells “express JE/Monocyte
Chemoattractant Protein-1.” We conclude that this difference in semantics does
not patentably distinguish the instant claims from the claims that Appellants lost
in the earlier interference.
Patent claims are construed in light of the specification. See, e.g.,
Renishaw plc v. Marposs Societa per Azioni, 158 F.3d 1243, 1248, 48 USPQ2d
1117, 1120 (Fed. Cir. 1998). (“[A] claim must be read in view of the specification
of which it is a part.”). The specification of the ‘078 patent provides the following
relevant disclosure:
• “In a further embodiment tumor killing cells, such as tumor
infiltrating lymphocytes (TIL cells) are genetically engineered to
express the JE/MCP-1 protein. The engineered cells therefore can
be administered to a vertebrate to provide a synergistic local tumor
cell killing.” Col. 1, line 66 to col. 2, line 3.
• “The JE gene . . . [was] first identified in mouse 3T3 cells.” Col. 2,
lines 51-53.
• “The human homolog of murine JE has been cloned,” col. 2, lines
60-61, although the specification does not disclose what cell line or
type was the source of the human JE gene.
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