Appeal No. 2002-0796 Page 10
Application No. 09/110,994
examples, see Appeal Brief, pages 7-9, are noted, but are not convincing as
nothing in claim 1 excludes the use of an octapeptide library as taught by
Petrenko.
Appellants also argue that the only known biological molecule that binds to
dioxin is the aryl hydrocarbon receptor (AhR), and that if Petrenko were relevant
to the claimed invention, AhR would be expected to contain the sequence
identified by Petrenko, i.e., the EPFP sequence, but it does not. Appellants also
assert that the binding affinity of the EPFP peptides is much lower for dioxin than
is the binding affinity of AhR for dioxin. Appellants conclude that “[t]he absence
of EPFP in AhR and the extremely low binding affinity of EPFP and dioxin would
not lead one skilled in the art to conclude that Petrenko’s observations are
relevant to the molecular mechanism of dioxin toxicity or that his approach could
be used to identify proteins having an affinity for dioxin.” Appeal Brief, page 7
(emphasis in original).
The above argument appears to be contrary to Appellants’ own
specification. Appellants themselves, using the sequence identified by Petrenko,
found that one of the proteins that contained the consensus sequence, Leukemia
Inhibitory Factor, when overexpressed in mice, resulted in some toxic effects
similar to those observed at very high doses of dioxin, and demonstrated that the
protein does in fact bind to dioxin. See Specification, page 30. Appellants stated
further that:
Petrenko [ ] demonstrated that the peptide consensus
sequence EPFP [ ] displayed affinity for biotinylated dioxin. He did
not, however, bring the result any further. The applicants followed
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