Appeal No. 2006-1035 Page 8
Application No. 09/925,140
Appellants also argue that polynucleotides encoding inactive SDHH variants
could be used “in assays to detect the presence of metabolism disorders or cancer.”
Appeal Brief, page 5.
This argument is also unpersuasive. The specification states that
Northern analysis shows the expression of SDHH in various libraries, 48%
of which are cancerous, 29% are involved in immune response, and 23%
are fetal, cell line or proliferating, 22% are from gastrointestinal tissue,
16% from immune tissue, 16% from reproductive tissue, and 12% are
from cardiovascular tissue.
Page 15, lines 20-24. (The “Northern analysis” referred to in the quote is not the
hybridization assay familiar to those skilled in the art, but an “[a]nalogous computer
technique[ ] . . . used to search for identical or related molecules in nucleotide
databases.” Specification, page 44.) The specification also states that “SDHH is
expressed in tissues which are cancerous, proliferating, or involved in immune
response. Therefore, SDHH appears to play a role in disorders of metabolism and
cancer.” Page 25, lines 16-18.
The specification, however, provides no explanation for why expression in
“tissues which are cancerous, proliferating, or involved in immune response” would
suggest that SDHH is involved in “disorders of metabolism.” In addition, the mere fact
that SDHH is expressed in cancerous cells does not provide a sufficient basis for
asserting that it “play[s] a role in . . . cancer.” Cancer cells are simply normal cells that
have lost control over cell division.5 Thus, the vast majority of proteins expressed by a
cancer cell are also expressed by normal cells; the fact that a protein is “expressed in
5 See, e.g., Watson et al., Recombinant DNA, 2nd edition (1992), page 363 (cancer results when a normal
cell sustains a series of mutations that cause it to grow faster) (copy attached).
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