Appeal No. 2002-0091 Page 8
Application No. 08/479,884
scope of claim 88, and the examiner has conceded that a person of ordinary skill in
the art knows how to use all of the exemplified variants. Based on this evidence,
those skilled in the art would reasonably expect that other variants would be about
96% likely to have a binding affinity different from wild-type hGH, and person of
ordinary skill in the art would know how to use those, too. Whether a given variant
would be expected to have a Kd(variant)/Kd(wt) ratio of 2 or 20 makes no
difference, if those skilled in the art would know how to use it regardless.
In view of the apparently high likelihood that any given hGH variant will be
within the scope of the claims, and given the examiner’s concession that even the
exemplified variants with very poor binding affinity are enabled, we cannot agree
with the examiner that practicing the full scope of the claims would require undue
experimentation. The rejection for nonenablement is reversed.
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