Appeal No. 2004-1040 Page 4
Application No. 09/770,643
NHP products can be used as therapeutics. For example, soluble derivatives such as
NHP peptides/domains corresponding to the NHPs, . . . NHP antibodies . . .,
antagonists or agonists . . . can be used to directly treat diseases or disorders.” Id.
The specification discloses that “[n]ucleotide constructs encoding functional
NHPs, mutant NHPs, as well as antisense and ribozyme molecules can also be used in
‘gene therapy’ approaches for the modulation of NHP expression.” Page 15.
The NHP protein is disclosed to have “a variety of uses. These uses include, but
are not limited to, the generation of antibodies, as reagents in diagnostic assays, for the
identification of other cellular gene products related to a NHP, [and] as reagents in
assays for screening for compounds that can be [used?] as pharmaceutical reagents
useful in the therapeutic treatment of mental, biological, or medical disorders and
disease.” Pages 15-16.
The specification discloses that NHP-binding antibodies “may be used, for
example, in the detection of NHP in a biological sample and may, therefore, be utilized
as part of a diagnostic or prognostic technique whereby patients may be tested for
abnormal amounts of NHP. . . . Such antibodies may additionally be used as a method
for the inhibition of abnormal NHP activity. Thus, such antibodies may, therefore, be
utilized as part of treatment methods.” Page 23.
Procedural Background
On June 19, 2004, Appellants were notified of certain similarities between the
present case and commonly assigned, previously decided Appeal 2004-0343
(application no. 09/564,557). Appellants were ordered (pursuant to 37 CFR § 1.196(d))
to explain why the appeal in this case should not be affirmed on the same basis as
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