Appeal 2006-2644
Application 10/047,945
15-16 (“IgE . . . [was] assayed in saliva”) and line 22 (“The results of these
experiments are shown in tables 3-7.”). Thus, the data in Table 4 represent
only saliva IgE levels, and do not show any reduction in serum IgE levels.
Appellants also argue that the previous decision erred in its treatment
of the application’s Figure 1 (discussed in the footnote on page 3 of the
decision), because pages 18-19 of the Specification explain the meaning of
Figure 1’s data (Req. Rhg. 4).
Appellants are correct that we previously overlooked the
Specification’s explanation of the data shown in Figure 1. Figure 1
summarizes the “Day 7” results for each of the treatments shown in Tables
3-7 (Specification 18: 19 to 19: 3). As relevant to this case, Figure 1
presents, in graphic form, some of the data in Table 4. We have considered
the data shown in the figure but conclude that it is merely cumulative to
those in Table 4; the figure does not contribute substantively to the
Specification’s disclosure.
Finally, Appellants argue that one of the lines of reasoning in the
previous decision is improperly relied on. Specifically, Appellants argue
that the lack of data pertaining to peptides smaller than ten amino acids
should not be considered relevant because “claim 9 as examined was limited
to SEQ ID NO: 2 (Final Rejection, page 2)” (Req. Rhg. 5).
We acknowledge the election of species requirement made by the
Examiner (to the 10-mer of SEQ ID NO: 1, not the 15-mer of SEQ ID
NO: 2). Because of the election of species, we withdraw our reliance on the
reasoning set forth in the second full paragraph on page 6 of the previous
decision: since it is unclear from the record that the Examiner examined
5
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013