Appeal No. 2002-0427 Page 8
Application No. 08/179,656
from SEQ ID NO:17 in a way that “does not affect the reactivity of the protein”),
but those functional properties are not correlated with any particular structural
features. Thus, the instant specification does not adequately describe the
claimed genus of proteins.
Appellants argue that they have adequately described the claimed genus
by describing structural features which are common to the members of the
genus. See the Appeal Brief, page 9:
[T]he claimed features taught by Appellants which are common to
the members of the claimed genus include an LDGF2 protein which
include (1) having an amino acid sequence which differs from the
sequence shown in SEQ ID NO:17 by an amino acid(s)
substitution, deletion or insertion in a region selected such that it
does not affect the reactivity of the protein, and (2) having
immunoreactivity.
Appellants go on to argue that they also provide methods of making “functional
equivalents” and “antigenic fragments” of LDGF2 and conclude that “the claimed
genus is defined by structural and functional features that are adequately
described in the specification, recited in the claims, and commonly possessed by
its members. These features are common to a substantial portion of the claimed
genus.” Id., pages 9-10.
Finally, Appellants argue that the instant specification
present[s] SEQ ID NO:17 as a representative of the claimed genus.
This member of the genus exemplifies all of the structural and
functional features included in the claims and taught in the
specification which are common among a substantial portion of the
members of the claimed genus. Appellants further submit that
disclosure of this member of the claimed genus constitutes a
“representative number” of species.
Id., page 10.
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