Appeal No. 2005-2207 Page 5
Application No. 09/548,933
hippocampus, temporal lobe, nucleus accumbens, heart, stomach, pancreas, pituitary
gland, liver and appendix” (id.).
According to appellant, “[t]he identification and cloning of hHAC3 . . . provides a
means for assaying for inhibitors and activators” of hHAC3, and “[t]hese activators and
inhibitors are [ ] useful as pharmaceutical agents for treating diseases involving
pacemaker dysfunctions such as familial sinus rhythm diseases, sick sinus syndrome
associated with atrial fibrillation, sinus tachycardias, bradycardias and ventricular
arrhythmias” (id., page 12). Modulators of hHAC3 activity “are also useful for treating
other disorders involving abnormal ion flux, e.g., . . . CNS disorders such as migraines
. . . [and] seizures” (id., page 9).
THE CLAIMS
Claim 1 is representative of the subject matter on appeal:
1. An isolated nucleic acid encoding a polypeptide comprising an
alpha subunit of a cation channel, the polypeptide forming, with at least
one additional hyperpolarization-activated channel (HAC) alpha subunit, a
cation channel having the characteristic of activation upon
hyperpolarization; wherein said nucleic acid encodes a polypeptide that
has greater than 96% identity to SEQ ID NO:1.
DISCUSSION
Utility
The examiner rejected claims 1, 3-5, 7-9, 12, 22 and 23, all the claims remaining
in the application, as lacking an “apparent or disclosed specific and substantial credible
utility” sufficient to satisfy 35 U.S.C. § 101. Answer, page 3. The examiner also
rejected all of the claims under 35 U.S.C. § 112, first paragraph, for lack of enablement.
However, that rejection is merely a corollary of the finding of lack of utility (id., page 12).
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