Appeal No. 2003-1417 Page 6
Application No. 09/298,404
We agree with Appellants that, under the agreed-upon claim construction,
Frackelton does not anticipate the instant claims. In a nutshell, since “specific”
binding requires binding to a single, specified protein without substantial binding
to other proteins, and since Frackelton’s antibodies would be expected to bind to
all of the Nsp1, Nsp2, and Nsp3 proteins, it follows ineluctably that Frackelton’s
antibodies do not bind “specifically” to any of Nsp1, Nsp2, or Nsp3. That is, any
antibody that binds to all three proteins does not bind “specifically” to any of
them.
The examiner argues that Appellants’ “definition does not preclude that
the antibodies of Frackelton et al. would not specifically bind to Appellants’
proteins denoted as SEQ ID NO:1, 3 and 5, which contain phosphotyrosyl
residues while not binding other polypeptides lacking phosphotyrosyl residues.”
Examiner’s Answer, pages 9-10.
The examiner’s statement of her position, however, reveals the fault in her
logic: the claims are not directed to antibodies that “specifically” bind one class
of proteins (e.g., proteins containing phosphotyrosyl residues) and not other
classes. Each of claims 60, 61, and 62 is directed to an antibody that
“specifically” binds to one, particular polypeptide, defined by its amino acid
sequence. According to both Appellants and the examiner, that limitation
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