Appeal No. 2003-0837 Page ~ PAGE ~4~
Application No. 09/078,531
characterization of Grande’s citation to Caplan. Brief, page 4. Appellants,
however, point out (Brief, pages 3 and 4), Grande disclose mesenchymal stem
cells as having a characteristic mononuclear, stellate shape (see Grande, column
9, lines 50-54), not a fibroblastic morphology as required by appellants’ claimed
invention.
To bridge this difference in morphology, the examiner directs our attention
to the disclosure at column 11, lines 47-50 of Caplan. According to the examiner
(Answer, page 4), column 11, lines 47-50 of Caplan “discloses human
mesenchymal stem cells obtained from bone marrow as having ‘similar
morphology, almost all being fibroblastic, with few adipocytic, polygonal or round
cells.[’]” Once again, for clarity we note that the cited section of Caplan states
(column 11, lines 47-40), “[a]dherent marrow-derived mesenchymal stem cells
derived from femoral head cancellous bone or iliac aspirate have similar
morphology, almost all being fibroblastic, with few adipocytic, polygonal or round
cells.”
As we understand the examiner’s position, Grande teaches the claimed
invention but for human mesenchymal stem cells having a fibroblastic
morphology. To make up for the deficiency in Grande, the examiner relies upon
what the examiner characterizes (Answer, pages 3-4), as a number of “implicit
statements” and “inherent disclosures” in the Grande disclosure.
First, the examiner selects bone marrow from Grande’s disclosure that
mesenchymal stem cells (MSCs) “are preferably isolated from muscle using a
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