Appeal No. 2004-2314 Page 3
Application No. 09/971,101
DISCUSSION
Claim Construction:
As set forth above, appellants’ claims are drawn to an isolated and purified
polypeptide that comprises at least 10 (claim 26), 20 (claim 27), 30 (claim 28), 40
(claim 29), 75 (claim 30) or 100 (claim 31) contiguous amino acids of SEQ ID
NO:2 or SEQ ID NO:4. Independent claim 26 is the broadest claim. As we
understand the claim, claim 26 is drawn to an isolated and purified polypeptide,
that has at least 10 contiguous amino acids from either SEQ ID NO:2 or SEQ ID
NO:4 with, or without, additional amino acids at either the amino or carboxyl
terminal end of the polypeptide. As we understand claims 27-31, each of these
claims depends from, and is narrower in scope than, claim 26 because each
requires a longer stretch of contiguous amino acids to be present in the
polypeptide.
Written Description:
The examiner concedes (Answer, page 10), “that a polypeptide which
consists of contiguous amino acids from SEQ ID NO: 2 or SEQ ID NO:4 is fully
described by the specification.” Nevertheless, the examiner finds (id.), “a
polypeptide which comprises contiguous amino acids from SEQ ID NO:2 or SEQ
ID NO:4 is a far larger genus of polypeptides and is not fully described by the
specification, absent additional characteristics of the claimed genus, such as
function.”
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