Appeal No. 2004-1259
Application No. 09/832,355
Appellants argue that “the disclosure of angiogenic promoting factors
(e.g., HBNF) in the specification and the literature, coupled with the disclosed methods
for making and using the claimed fusion protein, clearly equips the skilled artisan with
the ability to practice the invention defined by claim 12 using only routine methods of
experimentation.” Brief, page 8.
Paragraph [0052] of the specification, pages 22-23, provides a listing of peptides
which modulate growth, chemotactic behavior, and/or functional activities of smooth
muscle cells. These peptides include “Activin A, Adrenomedullin, ANF, Angiotensin-2,
Betacellulin, CLAF, endothelins, Factor X, Factor Xa, HB-EGF, Heart derived inhibitor
of vascular cell proliferation, IFN-(, IL1, Leiomyoma-derived growth factor (LDGF),
SMC-CF, macrophage derived growth factor (MGDF), monocyte-derived growth factor,
Oncostatin M, Prolactin, Protein S, SDGF (smooth muscle cell derived growth factor),
SDMF (smooth muscle cell derived migration factor), tachykinins, and
Thrombospondin.” Id. Peptides which modulate the growth, chemotactic behavior,
and/or functional activities of vascular endothelial cells are identified in the specification
at page 23, paragraph [0053].
In our view, the examiner has not established with appropriate argument or
evidence that one of ordinary skill in the art, upon reading the present specification,
would not have been enabled to make or use a fusion protein as in claim 12. We do
not find that the examiner has met his burden of showing that undue experimentation
would have been required to obtain a fusion protein as set forth in claim 12. The
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