Appeal No. 2004-1259
Application No. 09/832,355
contemplated. While, the specification also provides for preferred truncated forms of
HBNF peptide having various percentage amounts of the HBNF peptide, the
specification does not exclude the full length peptide and thus would appear to
reasonably support a claim to “at least about 60% of the wild-type HBNF or MK amino
acid sequence.”
The rejection of claim 31 for lack of written description is reversed.
Enablement and Written Description
Claims 1-7, 9, 12, 16-19, 30-41 and 43-46 stand rejected under 35 U.S.C.
§112, first paragraph for lack of enablement and lack of adequate written description.
The examiner raises several issues of lack of written description and enablement
with respect to the claims. We address them, in turn, below.
1. Lack of Enablement VEGF Protein
The examiner argues that the claims in the application “are extremely broad,
encompassing a fusion protein of any possible VEGF protein that does not bind to
heparin, to any other cytokine with any angiogenic or bone growth activity. Overall, the
specification does not teach how to make and use the invention in a manner
commensurate in scope with the claims, and does not provide an adequate written
description to support the claimed scope.” Answer, pages 7-8.
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