Appeal No. 2004-2314 Page 8
Application No. 09/971,101
mode of making and using the invention.” Johns Hopkins Univ. v. CellPro Inc.,
152 F.3d 1342, 1361, 47 USPQ2d 1705, 1714 (Fed. Cir. 1998). Here, as
conceded by the examiner, appellants’ description enables a method of making
and using the claimed invention for the production of antibodies to the
polypeptides having SEQ ID NO: 2 or SEQ ID NO:4. On this record the
examiner has not articulated a reason as to why the polypeptides having SEQ ID
NO:2 or SEQ ID NO:4 would not be useful, accordingly, we find no sustainable
reason on this record in support of the examiner’s finding of a lack of enablement
for the claimed invention.
Accordingly, we reverse the rejection of claims 26-31 under 35 U.S.C.
§ 112, first paragraph, as being based on an insufficient disclosure to support or
enable the scope of the claimed invention.
REVERSED
)
Toni R. Scheiner )
Administrative Patent Judge )
)
) BOARD OF PATENT
)
Donald E. Adams ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
)
)
Demetra J. Mills )
Administrative Patent Judge )
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