Appeal No. 2005-0792 Page 15
Application No. 09/750,373
added) that “nGPCR-x may be useful in the treatment of respiratory ailments
such as asthma….” What is unclear is which of the 467 disclosed sequences for
nGPCR-x would be useful for the treatment of asthma. In this regard, we note
that “asthma” is not included in appellants’ extensive listing (see specification,
pages 99-100) of diseases for which the claimed polynucleotide, which encodes
nGPCR-1007, is postulated to be associated.
Nevertheless, in support of their arguments relating to the BLAST data,
appellants rely on three post-filing date references8 to support their assertion that
GPRA receptors are known to play a role in asthma, and that arginine
vasopressin receptors are known to be involved in asthma and diabetes. We,
however, decline to consider these post-filing date references, which published in
2004. The instant application was filed December 28, 2000, claiming priority to
earlier provisional applications.9 The utility requirement must be met as of the
filing date of the application. See In re Brana, 51 F.3d 1560, 1567 n.19, 34
USPQ2d 1436, 1441 n.19 (Fed. Cir. 1995) (“[e]nablement, or utility, is
determined as of the application filing date.”) The references relied upon by
appellants were published after the filing date of the application, and appellants
have cited no evidence to show that those skilled in the art would have been
7 According to appellants’ specification (page 16), “[p]referred DNA sequences encoding human
nGPCR-x polypeptides are selected from the group consisting of …” SEQ ID NOs: 1-46.
8 Laitinen et al., “Characterization of a Common Susceptibility Locus for Asthma-Related Traits,”
Science, Vol. 304, pp. 300-304 (2004); Thibonnier, “Genetics of Vasopressin Receptors,” Current
Hypertension Reports, Vol. 6, pp. 21-26 (2004); and “Entrez Gene”,
http://www.ncbi.nlm.nih.gov/entrez/, Entrez Reference No.: GPR154 (updated September 12,
2004).
9 According to Table 1, (specification, bridging paragraph, pages 13-14), SEQ ID NO: 12 was
originally filed in Provisional Application No.: 60/224, 321, filed August 11, 2000.
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