Appeal No. 2004-2356 Page 8
Application No. 09/833,740
We agree with the above analysis, and find that the specification does not
adequately describe the genus of GLP-2R promoter regions encompassed by
claim 1, and the rejection is affirmed.
Appellants argue that the written description requirement is met as the
disclosure sets forth a correlation between function and structure. See Appeal
Brief, page 12.
Appellants assert that the specification sets forth the partial structure for
both the murine (SEQ ID NO:1) and the human (SEQ ID NO:7) GLP-2R promoter
region. See id. According to appellants, the murine sequence contains at least
1.5kb of the GLP-2R promoter region, while the human homolog includes at least
202 nucleotides. See id. In addition, appellants contend that the specification
sets forth another physical property of the promoter region—its location. See id.
at 13. The promoter region, as set forth in the specification, is located in the 5'-
flanking region upstream of the transcription start site of the GLP-2R gene. See
id.
Appellants assert further that “[t]he specification also discloses a
correlation between the physical property of the claimed promoter regions and
their function. Specifically, the specification teaches the correlation between the
nucleotide sequences as located in the 5'-flanking region upstream of the
transcription start site of the GLP-2R gene and the tissue-specific promoter
function of the claimed promoter regions.” Id.
Appellants’ arguments are not convincing. Specifically, as to structure, the
specification only teaches two partial structures, i.e., nucleotide sequences, of
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