Appeal No. 2006-0298 Page 4
Application No. 10/021,955
and also elected the species 247∆C. See Response to Restriction Requirement
and Preliminary Amendment, Stamped June 20, 2003, page 3. In response, the
examiner stated that the election of SEQ ID NO: 76 “is not a species election
rather, it is the election of a restricted SEQ ID No. corresponding to an elected
group.” Office action mailed July 23, 2003, page 2. The election of the specific
SEQ ID NO. was made final on page 3 of the Office Action mailed April 30, 2004.
Moreover, in the Final Rejection, mailed January 12, 2005, the examiner
maintained the finality of the restriction to the specific SEQ ID NO., as well as the
election of species, stating on page 10 that
these sequences comprise patentably distinct SNPs or mutations of
the periaxin gene. These SNPs or mutations result in patentably
distinct periaxin sequences with different structures. These variant
polynucleotides are structurally and functionally different. Hence
the restriction requirement is still deemed proper and the finality is
maintained.
Thus, it is clear that the subject matter before us is restricted to claims 1-7,
35-40 and 42-61 as they read on SEQ ID NO. 76, with the species of 247∆C
being elected for purposes of examination. With that in mind, we turn to the
rejection of record.
Claims 1-7, 35-40 and 42-61 stand rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the enablement requirement, as the
containing subject matter that was not described in the specification in such a
way as to enable one skilled in the art to which it pertains, or with which it is most
nearly connected, to make and/or use the invention.
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