Appeal No. 2006-1270 Page 6
Application No. 10/222,614
stable (drug-selectable) transfectants at rates about 10-5,” id. at page 319, first
column, second full paragraph. Thus, Zwaka teaches that human embryonic
stem cells may be transfected through the use of chemical reagents.
Moreover, while Hanson teaches that “[e]xperimental manipulation of
hematopoietic stem cells is challenging . . . [as] [t]hey are difficult to purify,
propagate ex vivo, assay, and transduce,” id. at 159, second column, Hanson
also teaches that enhanced green fluorescent protein was integrated into the
Sca-1 (glycosyl phosphatidyl-anchored protein) locus by homologous
recombination in mouse embryonic stem cells, see id., abstract. Thus, Hanson
demonstrates while it may be difficult to manipulate hematopoietic stem cells, it is
possible to do so. See, e.g., Johns Hopkins University v. CellPro, Inc., 152 F.3d
1342, 136-61, 47 USPQ2d 1705, 1719 (Fed. Cir. 1998) (“The test [for undue
experimentation] is not merely quantitative, since a considerable amount of
experimentation is permissible, if it is merely routine, or if the specification in
question provides a reasonable amount of guidance with respect to the direction
in which the experimentation should proceed to enable the determination of how
to practice a desired embodiment of the claimed invention.” (insert in original)).
Finally, the fact that the prior art does not show human stem cells with zinc
finger-endonuclease fusion proteins is not the correct standard to measure
enablement, for if it were, any novel and/or non-obvious invention would be, by
definition, non-enabled.
6 All references to the “Appeal Brief” are to the Appeal Brief dated July 11, 2005.
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