Appeal No. 2004-0735 Page 5
Application No. 08/081,540
applicant and the prior art are the same, the applicant has the burden of showing
that they are not.”).
In response, appellants argue (Brief, page 5), Gearing “teach a nucleic
acid sequence encoding a mouse leukemia inhibitory factor ([murine] LIF), a
protein structurally and functionally unrelated to … a Der p VII protein allergen as
presently claimed.” There is, however, no evidence on this record that the 7
amino acid region of the Der p VII protein allergen is not an epitope recognized
by a T or a B cell receptor specific for a Der p VII protein allergen. At best,
appellants argue (Brief, page 6, emphasis added), “the 7 amino acid sequence
shared between Der p VII and murine LIF would not likely be recognized by any
T cell….” Appellants, however, fail to provide any evidence to support this
assertion. In this regard, we remind appellants that attorney argument cannot
take the place of evidence lacking in the record. Meitzner v. Mindick, 549 F.2d
775, 782, 193 USPQ 17, 22 (CCPA 1977).
Claims 47 and 48:
Appellants assert (Brief, page 5, emphasis removed), “a T cell specific for
a Der p VII protein allergen … would not recognize a murine LIF protein, since T
cell recognition of protein allergens depends on the manner in which the whole
protein is proteolytically processed and presented by antigen presenting cells….”
Accordingly, appellants conclude (Brief, bridging paragraph, pages 5-6), “the
nature of T cell epitopes processed and presented from a Der p VII protein
allergen would significantly differ from the nature of T cell epitopes processed
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