Appeal No. 2006-3253 Page 10
Application No. 10/276,547
states that compounds having certain properties might be useful for treating Type I or
Type II diabetes but provides no evidence that either the protein of SEQ ID NO:2 or
compounds that bind to it have those properties or reasonably would have been
expected to have them.
The specification states that Type I diabetes can potentially be treated with
agents that prevent the underlying autoimmune reaction or that “induce beta cell
proliferation and regeneration.” Page 52, lines 5-9. The specification states that Type II
diabetes can potentially be treated with agents “that increase the response by the beta
cell to glucose,” that “increase the activity of the insulin receptor in muscle, liver and fat,”
or that “directly activate the cellular end product . . . to generate an insulin-like effect,”
as well as by “any agent that reduces body weight.” Page 52, lines 11-26. The
specification also states that “[b]oth Type I and Type [II] diabetes can be treated with
agents that mimic insulin action or that treat diabetic complications by reducing blood
glucose levels.” Page 52, lines 28-29.
The evidence of record, however, does not show that the protein of SEQ ID NO:2
or compounds that bind to it were recognized as having any of these properties, or
reasonably would have been expected to have any of these properties, as of the
effective filing date. The only evidence apparent in the specification that would be
relevant to diabetes is in Table 1 (page 77). Table 1 shows that the protein of SEQ ID
NO: 2 has a relative expression level of 240.57 in pancreas (compared to 1.00 in
“spleen liver cirrhosis” and 2499.15 in “uterus”). The examiner has not disputed the
accuracy of the expression data, but even assuming that Table 1 represents actual,
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