Appeal No. 2003-0837 Page ~ PAGE ~3~
Application No. 09/078,531
DISCUSSION
THE REJECTIONS UNDER 35 U.S.C. § 102(e)/103:
Claims 33-35, 40, 41, 43, 44, 47-49, 50 and 51
According to the examiner (Answer, page 3), “[o]ther than the phrase
describing the mesenchymal stem cells as explicitly being human and as ‘having
a fibroblastic morphology’, all other limitations of the cited claims are clearly
anticipated by the Grande et al. patent.” To make up for this deficiency, the
examiner finds (id.), Grande “discloses at col. 3, lines 61-62 that ‘MSC’s can be
obtained from bone marrow or other mesenchymal tissues.’” For the sake of
clarity, the cited section of Grande states, mesenchymal stem cells (MSCs) “are
preferably isolated from muscle using a standard punch or dermal biopsy.
However, MSCs can be obtained from bone marrow or other mesenchymal
tissues.” The examiner also finds (id.), Grande discloses “at col. 3, lines 66-67
… that mammalian MSCs are contemplated for use in the practice of this
invention. Implicit in this statement is the inherent disclosure of human as well as
all other mammalian MSCs.” To be clear, Grande disclose (column 3, lines 63-
67), “[a] detailed procedure for isolation of MSCs from embryonic chick muscle is
described by Young…. The same basic procedure is used for isolation of
mammalian MSCs from muscle.”
According to the examiner (Answer, bridging sentence, pages 3-4),
column 2, line 63 of Grande refers to Caplan, United States Patent 5,226,914,
and is cited as disclosing mesenchymal stem cells used in the process of
stimulating bone formation. Appellants agree with the examiner’s
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