Appeal No. 2005-0792 Page 16
Application No. 09/750,373
aware of the relevant disclosures as of the application’s filing date.10 Therefore,
these post-filing date references cannot be relied upon to establish the utility of
the claimed polynucleotide.
We recognize appellants’ assertion (Brief, page 9), “the claimed receptors
contain additional functional as well as structural motifs characteristic of arginine
vasopressin receptors.” According to appellants (Brief, page 10), these
“characteristics are described in [the post-filing date reference,] Thibonnier [2004,
see supra n. 8]….” However, for the reasons set forth above, we decline to
consider this post-filing date reference. Therefore, we find no support on this
record to support appellants’ assertion (Brief, page 11), “[t]he structural
similarities, including both sequence identity and conserved motifs, between the
claimed receptors and the known receptors, … support [a]ppellants’ assertion of
10 In this regard, we recognize appellants’ reliance (Brief, page 4) on Shimura et al., “Urinary
Arginine Vasopressin in Asthma: Consideration of Fluid Therapy,” Acta Paediatr Jpn, Vol. 32, pp.
197-200 (1990), to support the assertion that “the conopressin 2 receptor is an arginine
vasopressin receptor….” Shimura et al., however, makes no reference to the conopressin 2
receptor, an arginine vasopressin receptor, or a receptor of any kind. To the contrary, Shimura
reports on the observed levels of antidiuretic hormone (ADH) and urinary arginine vasopressin
(AVP) in 28 asthmatic patients. Rather than establish any nexus between a receptor, particularly
a GPCR, and the observed levels of ADH and AVP, Shimura concludes (page 200), “[f]luid
therapy is important for patients with severe asthmatic attacks….” Accordingly, we fail to see the
relationship between Shimura and appellants’ claimed invention.
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