Appeal No. 2004-2356 Page 12
Application No. 09/833,740
describe, i.e., provide additional nucleotide sequences, for the murine promoter
region, other than the 1.5 kb of the nucleotide sequence of the murine GLP-2R
promoter region in Figures 1 and SEQ ID No: 1. The claim, however,
encompasses up to 10.6 kb of the murine promoter region. As noted by the
specification, that region may also include transcription factor binding sites,
upstream activator sequences, and additional regulatory sequences “through
which expression from the endogenous GLP-2R gene is normally regulated.”
Specification, page 10, see also Specification, page 47. As the specification
does not provide sequences of those additional regulatory elements, it does not
provide an adequate written description of the promoter region comprising from
1.5 kb to 10.6 kb of the murine GLP-2R receptor promoter. The rejection as to
claim 10 is therefore affirmed.
With respect to claim 11, appellants are essentially the same as for claim
10. Specifically, appellants argue that the specification provides a partial
structure in SEQ ID NO: 1, teaches another physical property by teaching the
location, and “discloses a correlation between the physical and functional
properties by teaching that the nucleotide sequence at that location is
responsible for the tissue-specific function.” Appeal Brief, page 22.
The rejection as to claim 11 is affirmed for the same reasons as set forth
as to the rejection of claim 10. As noted above, the claim is not limited to the 1.5
kb region disclosed by the specification in SEQ ID NO:1, but also includes
additional regulatory sequences that are not described the specification.
Indefiniteness
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