Appeal No. 2004-0005 Page 9
Application No. 07/644,361
have uncovered additional information that appellants and the examiner should take into
account if prosecution is resumed on this subject matter.
This application was filed on January 18, 1991 and is stated to be a continuation-
in-part of an application filed on February 1, 1990, which in turn is stated to be a
continuation-in-part of an application filed on August 4, 1989. It does not appear that
the examiner has determined whether the claims on appeal are entitled to the benefit of
the earlier filing date of either parent application. This is important because the
information which will be discussed may or may not be prior art to the claims on appeal
depending upon the exact filing date to which the claims are entitled. In any event, the
information may be relevant in determining the patentability of the claims on appeal
since it has been held that non-prior art publications may be relied upon to establish
characteristics of the prior art products. In re Wilson, 311 F.2d 266, 268-69, 135 USPQ
442, 444 (CCPA 1962).
We direct attention to Lippman and its disclosure of ligands to c-erbB-2 protein.
Specifically, Lippman states:
In accordance with the present invention, it has been surprisingly
discovered that a number of structurally distinct polypeptides function as
ligands for p185erbB-2. These ligands include polypeptides of about 20-
26kDa (which are glycosylated to form ligands of 30-45kDa apparent
molecular weight) and also include polypeptides of about 75 kDa which
are not glycosylated. These ligands share the properties of specifically
binding to p185erbB-2 and inducing autophosphorylation thereof. The
ligands differ in structure and some other biological activities. All of the
polypeptides which specifically induce autophosphorylation of p185erbB-2
are termed “erbB-1 ligands” herein. The low molecular weight
glycosylated species of erbB-2 ligands are variously described herein by
the terms “heregulin”, “gp30", “30 KDa growth factor”, “30 kDa ligand”, or
“TGF"-like polypeptide”. the higher molecular weight species is
additionally identified as “p75".
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