Appeal No. 2002-1358
Application No. 09/467,903
Appellants further argue (Brief, page 7):
It is appropriate for the claims to utilize claim language which does
not readily appear in the specification as long as one skilled in the art
would impliedly or inherently recognize that the applicant has invented
the specific subject matter claimed. In reviewing the teachings of the
specification set forth on pages 1, 3, 12, 36, 37 and 41, it is clear that the
inventors did contemplate a pharmaceutical composition or a
liposome/antibody conjugate comprising an antibody fragment of the
monoclonal antibody.
Appellants submit that the “gist of the present invention resides in the finding of a
specific monoclonal antibody defined by the amino acid sequences listed in the
Sequence Listing, which can actually bind to the aimed antigen, and not in the finding
that antibody fragments can also be used in the same manner as the antibodies
themselves for the purpose of the invention. In other words, it not necessary under
U.S. practice for the present application to teach what is widely known or recognized by
those skilled in the art as of the priority date of the application. Since it is well known to
one skilled in the art that antibody fragments in the field of 'targeting therapy' are used
in the same manner as the antibody themselves, it clearly shows that the inventors
contemplated the use of such fragments, as well as the antibodies themselves in the
field of 'targeting therapy'”. Brief, pages 8-9.
Appellants proffer three references, which teach the preparation and/or
usefulness of antibody fragments in “targeting therapy”. In particular, Wright describes
the covalent linking of Fab' antibody to liposomes and their use as drug delivery
vehicles. Wright, pages 350-351. Singhal describes the preparation and interactions
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