Appeal No. 2001-0869 Page 14
Application No. 08/453,347
• Cells expressing JE/MCP-1 were created by transforming cells with
a vector comprising murine or human JE cDNA. No detectable
JE/MCP-1 was produced in cells transformed with the expression
vector alone, but “[c]onsiderable JE/MCP-1 protein was secreted by
cell lines transfected with murine JE cDNA in the sense orientation
. . . and human JE cDNA.” Col. 3, line 52, to col. 4,line 17.
• “Transfected Chinese Hamster Ovary cell lines” containing “JE
cDNA” did not form tumors when injected into animals. See Table
1 (col. 4, line 55, to col. 5, line 13).
• Co-injection of JE/MCP-1-expressing cells together with
untransformed, tumor-forming cells resulted in suppression of
tumor formation; the JE/MCP-1-expressing cells (cell lines 10A-10,
hJEC-10, and hJEC-100) were transfected with murine or human
JE/MCP-1 cDNA. Col. 5, lines 33-59 and Table 1.
• For treatment of cancer, JE/MCP-1 protein can be administered
directly (col. 6, line 67, to col. 8, line 3), or “[a]lternatively, tumor
killing cells, such as tumor infiltrating lymphocytes (TIL cells) could
be genetically engineered to express the JE/MCP-1 protein. Tumor
killing cells engineered in this way can provide synergistic local
tumor cell killing. The tumor killing cells could be engineered in
vitro and administered to the vertebrate or the tumor killing cells
could be engineered in vivo into the vertebrate’s own supply of
tumor killing cells using methods which are known in the art.” Col.
8, lines 4-12.
Thus, the only JE/MCP-1-expressing cells described in the ‘078 patent are
cells that have been genetically engineered to express JE/MCP-1. When read in
light of the ‘078 patent’s specification, the patent’s claims 5 and 6 must be
interpreted to be directed to a method of suppressing tumor formation by
administering tumor killing cells that have been genetically engineered to express
JE/MCP-1. Thus, instant claims 1 and 2 are directed to the same method as
defined by the patent’s claims, properly construed, and they are not patentably
distinguished from the claims that Appellants lost in the ‘998 interference.
Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: November 3, 2007