Appeal No. 2003-1417 Page 4
Application No. 09/298,404
1. Double patenting
The examiner rejected claims 60-73 and 76 under the judicially created
doctrine of obviousness-type double patenting, based on claims 30-39 and 44 of
U.S. Patent 6,326,482.1
Appellants, “[w]ithout necessarily agreeing with the propriety of the
outstanding rejection,” Appeal Brief, page 14, have not disputed its merits and
have agreed to file a terminal disclaimer to overcome it. See id. Since
Appellants has not argued that the rejection is improper, we affirm it.
2. Anticipation
The examiner rejected claims 60-66, 68, 69, and 71-73 as anticipated by
Frackelton, based on the following reasoning: “Nsp1, Nsp2 and Nsp3 . . . contain
phosphotyrosyl residues. The monoclonal antibodies of [Frackelton] have affinity
for molecules containing o-phosphotyrosine residues, hence these antibodies
would unequivocally bind to polypeptides comprising the amino acid sequences
of SEQ ID NO:1-3.” Examiner’s Answer, page 4.
Appellants agree with the examiner that the antibodies disclosed by
Frackelton would be expected to bind to Nsp1, Nsp2, and Nsp3, because they
would be expected to “bind to any phosphotyrosyl-containing polypeptide.”
1 The ‘482 patent has only twenty-one claims; presumably, the examiner intended to reject the
instant claims over the patented claims corresponding to application claims 30-39 and 44.
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