Appeal No. 2004-0735 Page 4
Application No. 08/081,540
DISCUSSION
The examiner finds (Answer, page 3), Gearing “teach a nucleic acid
sequence [Figure 10] encoding a peptide which has 7 consecutive amino acids in
common with the instantly claimed SEQ ID NO:2.” Appellants, agree with this
finding (Brief, page 5), “[t]he nucleic acid sequence … [disclosed by Gearing]
includes 7 consecutive, linear amino acids in common with the instantly claimed
SEQ ID NO:2.” In addition, we note that Gearing specifically disclose (column
10, lines 37-39), a peptide fragment comprising these 7 amino acids. According
to the examiner (id.),
[s]ince it is well established in the art that the smallest peptide
which will consistently elicit antibodies that bind the original protein
are 6 amino acids in length, the nucleic acid of Gearing et al[.]
meets the limitations of the claim as a nucleic acid encoding at
least on B cell epitope. Additionally, the elicitation of B-cells (e.g.
antibodies) to peptides requires activated T-cell help. Thus, the 7-
mer of the prior art also meets the limitation of comprising at least
one T-cell epitope.
As we understand the examiner’s reasoning, the nucleic acid sequence disclosed
by Gearing encodes a peptide comprising 7 amino acids in common with a Der p
VII protein allergen comprising the amino acid sequence shown in appellants’
SEQ ID NO:2. Based on the size requirements of a B or T-cell epitope, it
appears that this 7 amino acid region of Der p VII is an eptiope that will be
recognized by a T or a B cell receptor specific for a Der p VII protein allergen. In
our opinion, the evidence of record is sufficient to shift the burden to Appellants
to show that the claimed products are not the same as the products of the prior
art. See In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir.
1990) (“[W]hen the PTO shows sound basis for believing that the products of the
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