Appeal No. 2004-2356 Page 7
Application No. 09/833,740
endogenous GLP-2R receptor,’ the specification does not describe these
additional sequences.” Id. at 6.
The examiner acknowledges that “[t]he specification discloses
approximately 200 bases upstream of the transcription start site of the human
GLP-2R gene,” but that the human upstream sequence was not disclosed, and
that “[n]o structural information for the promoter of a GLP-2R gene for any other
species of organism is disclosed.” Id. at 6-7. Thus, according to the examiner,
only a single species of the broadly claimed genus of a “promoter region of a
GLP-2R receptor gene” is disclosed by the specification. See id. at 6.
With respect to functional characteristics of the GLP-2R promoter, the
examiner states that “[t]he only assay disclosed in the specification relating to
promoter function is to operably link the putative promoter sequence to a reporter
gene, e.g. lacZ, make a transgenic mouse containing the construct and then
compare the expression of the reporter to the expression of the endogenous
mouse GLP-2R receptor in various tissues.” Id. at 4. When that assay was
conducted, however, the examiner explains “that the 1.5 kb mouse sequence
directed expression of the reporter in similar but not identical tissues as the
endogenous GLP-2R gene.” Id. (emphasis added). Moreover, given the results
from using the mouse sequence in a transgenic mouse, the examiner explains
that it is unclear from the disclosure how the function of GLP-2R promoters from
organisms other than the mouse is to be assessed. See id. at 7.
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