Appeal No. 2004-0735 Page 2
Application No. 08/081,540
Gearing et al. (Gearing) 5,427,925 Jun. 27, 1995
GROUND OF REJECTION
Claims 47-49 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Gearing.
We affirm.
CLAIM CONSTRUCTION
Claim 47 is drawn to an isolated nucleic acid that encodes a peptide. The
only restriction on the peptide encoded by the claimed nucleic acid is that the
peptide must comprise at least one epitope recognized by a T or a B cell receptor
specific for a Der p VII protein allergen. According to claim 47, the Der p VII
protein allergen comprises the amino acid sequence shown in Figure 3 (SEQ ID
NO: 2). We find claim 47 to be broader that the statement in appellants’
disclosure (page 4), wherein “one aspect of the present invention pertains to an
isolated nucleic acid having a nucleotide sequence coding for Der p VII,
fragments thereof or equivalents thereof.”
Claim 47 does not require the peptide encoded by the claimed nucleic acid
to be in the “context” of the naturally occurring Der p VII protein. Stated
differently, the claim reads on a Der p VII “epitope” embedded in a protein other
than a Der p VII protein allergen. In addition, there is no requirement in claim 47
for the claimed nucleic acid to encode a peptide that is recognized by a T or a B
cell receptor specific for a Der p VII protein allergen. Stated differently, claim 47
is open to read on a nucleic acid that encodes a peptide that contains an amino
acid region that corresponds to an epitope of the Der p VII protein allergen
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