Appeal No. 2005-1422 Page 5
Application No. 09/997,522
DISCUSSION
Statutory Double Patenting:
Claims 4, 5 and 57 stand rejected under 35 U.S.C. § 101 as claiming the
same invention as claims 1 and 3 of U.S. Patent No. 5,686,597. According to
appellants (Brief, page 5), “[a]ll of the claims on appeal are grouped together,”
with regard to this ground of rejection. Since all claims stand or fall together, we
limit our discussion to representative claim 4. Claims 5 and 57 will stand or fall
together with claim 4. In re Young, 927 F.2d 588, 590, 18 USPQ2d 1089, 1091
(Fed. Cir. 1991).
Claim 4 of the present application depends from and further limits
independent claim 3 to an isolated polynucleotide that encodes a polypeptide
comprising the amino acid sequence of SEQ ID NO:2. Claim 1 of the ‘597 patent
is drawn to “[a]n isolated and purified polynucleotide encoding a thrombin
receptor homolog (TRH) comprising the amino acid sequence of SEQ ID NO:2.”
According to appellants’ specification (page 1), the instant application is a
divisional application of the ‘597 patent. Therefore, the amino acid sequence of
SEQ ID NO:2 of the instant application is the same as SEQ ID NO:2 of the ‘597
patent. Accordingly, the polynucleotides set forth in claim 4 of the instant
application, and claim 1 of the ‘597 patent are the same.
Appellants’ only argument is that the polynucleotide set forth in claim 4 of
the instant application is “isolated,” whereas the polynucleotide set forth in claim
1 of the ‘597 patent is “isolated and purified.” Brief, page 45. According to
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