Appeal No. 2002-1296 Page 5
Application No. 08/957,038
when it is considered that the monocytes used in Purchio are macrophages which
circulate in the blood. Thus, we shall focus our attention on Purchio.
Purchio describes an assay similar to that required by claim 15 on appeal in that
human macrophages (monocytes) are cultured in the presence of recombinant gamma
interferon (r(INF) and latent TGF-$1 (LnTGF-$1). A control assay using macrophages
and LnTGF-$1 is also described. See Purchio, column 65, line 24 - column 66, line 51,
especially Table XIII. The data show that r(INF induced increased activation of LnTGF-
$1 by human macrophages. As explained:
These results indicate that (INF effectively induces human
monocytes to mediate the release of active TGF-$ from a latent
recombinant TGF-$ complex. The TGF-$ released into supernatants,
derived from exogenously added LnTGF-$1, appears to be both
functionally identical with TGF-$1 (mAb neutralization of NRK colony
formation) and exhibits a mass (SDS-PAGE) identical to natural TGF-$
isolated after purification at acid pH from platelet and bone.
Id., column 66, lines 43-50.
Since r(INF served to modulate release of active TGF-$1 from LnTGF-$1 in the
assay of Purchio, it appears reasonable to denominate r(INF a "modulator compound"
as required by claim 15 on appeal. Thus, the question becomes would it have been
obvious to one of ordinary skill in the art to use immortalized, non-cancerous
macrophages in the assay described in Purchio? The examiner relies upon ATCC,
Adams, Huber, and Flaumenhaft as evidence to support this modification. We agree
with appellants that these references do not provide sufficient evidence to support the
proposed modification.
ATCC provides evidence that one of appellants' preferred immortalized, non-
cancerous macrophages, mouse peritoneal macrophages IC-21 transformed with
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