Appeal No. 2004-1369 Page 18
Application No. 08/966,233
3. Skeletal Development: Akhurst, page 159-161, wherein Akhurst
point out (page 161, endnotes omitted):
TGFβ1 expression is associated with more overtly
differentiated cell types in areas of ossification,
namely osteoblasts, osteocytes and osteoclasts…. It
has been reported that TGFβ2 is also expressed in
these cell types…, though this has been questioned
by others…. Unlike TGFβ2 and β3, TGFβ1 is, thus,
more likely to be involved in control of osteoblast/
osteoclast function, including bone remodeling which
continues in the adult, and is influenced by
osteotropic hormones.
Again, appellant has not identified on this record whether
GDF-1 exhibits TGFβ1, TGFβ2 or TGFβ3 activity.
Accordingly, we agree with the examiner’s finding (Answer, page 20) that
Akhurst amply illustrates that embryogenesis is a highly diverse and complex
process including skeletal development, hematopoiesis, vascularization, and so
forth. (See pages 157-164.)[.] This is also acknowledged by the specification as
filed on page 2, lines 15-20. As such, a disclosure that GDF-1 may be involved
in embryogenesis cannot be considered to convey to those of ordinary skill in the
art any specific or clear biological activity. It provides no direction or guidance as
to which aspect or to a particular activity.
Thus, we disagree with appellant’s intimation (Brief, page 8) that by
assigning GDF-1 to the TGF-β superfamily, GDF-1 can be imputed with the
same specific, substantial, and credible utility to the TGF-β family. As set forth
above, different isoforms of the TGF-β family exhibit different activities. On this
record, appellant failed to identify any evidence, and we find none, to support the
assertion that GDF-1 will share the activity of all isoforms of TGF-β. Nor do we
find any evidence on this record that appellant’s specification identifies with any
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