Appeal No. 2004-1106 July 2004
Application 09/871,388 Page 6
15. In response to this rejection, appellants amended claim 14 to expressly exclude
any antibody that specifically binds a MADM protein (Paper 9, filed 24 December 2002).
C. The appeal
16. Claim 14, as amended, is illustrative of the subject matter on appeal and reads
A composition comprising an antibody or antibody fragment which
specifically binds a KUZ polypeptide consisting of an amino acid
sequence selected from the group consisting of SEQ ID NO:2, SEQ ID
NO:4, SEQ ID NO:6, and SEQ ID NO:8, and distinguishes and does
not specifically bind bovine mammalian disintegrin-
metalloproteinase (MADM). [Emphasis added.]
17. The examiner then finally rejected claims 14-21 and 22-33 as lacking original
descriptive support for an antibody that binds to SEQ ID NOS: 2, 4, 6 or 8, but does not
bind to Howard's MADM protein (Paper 10, mailed 11 March 2003, p. 2).
18. Appellants appealed from the final rejection mailed 11 March 2003 ("NOTICE OF
APPEAL," Paper 11, filed 7 May 2003).
19. According to appellants (Brief, pp. 2-3),
Our Specification teaches that KUZ binding specificity may be
assayed by KUZ-specific antibody binding (Specification, p.5, lines 20-24),
or by eliciting a KUZ-specific antibody (Specification, p.5, lines 28-29).
Our Specification teaches that KUZ binding specificity distinguishes that of
bovine MADM (Specification, p.5, lines 29-31). Our specification
describes and teaches how to make KUZ-specific antibodies
(Specification, p.8, line 18 - p.10, line 8).
The objected to limitation is inherent in a KUZ-specific antibody.
By specifically binding to the recited KUZ protein, the claimed antibody
distinguishes and does not specifically bind bovine MADM. KUZ, by
definition, must have a binding specificity that distinguishes MADM. Since
KUZ binding specificity by definition includes binding of a KUZ-specific
antibody, a KUZ-specific antibody must necessarily distinguish KUZ from
MADM.
Other findings of fact follow below.
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