Appeal No. 2003-0837 Page ~ PAGE ~5~
Application No. 09/078,531
standard punch or dermal biopsy. However, MSCs can be obtained from bone
marrow or other mesenchymal tissues.”
Then, notwithstanding Grande’s use of mesenchymal stem cells obtained
from rabbit muscle (see Brief, page 3), the examiner selects humans from
Grande’s disclosure that “[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.”
Finally, using Grande’s reference to Caplan as a foot-hold, the examiner
relies on Caplan’s disclosure that “[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.”
Based on this analysis, the examiner finds (Answer, page 4), “marrow-
derived human mesenchymal stem cells inherently have ‘a fibroblastic
morphology’ and that this property would be inherently found in the mesenchymal
stem cells of the Grande et al. patent, since Grande explicitly teaches the
obtention [sic] of mesenchymal stem cells from bone marrow, thereby
anticipating the cited claims.”
The examiner’s analysis begs the question, besides appellants’ claimed
invention, what is directing the examiner’s selection of human bone marrow, from
the disclosure of Grande? Furthermore, assuming arguendo Grande does direct
a person of ordinary skill in the art to human bone marrow, why does Grande
necessarily lead one to bone marrow from femoral head cancellous bone or iliac
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