Appeal No. 2006-2892
Application No. 10/012,237
The Disputed Claim Limitation: “ Specifically Binds”
Appellants take the position that “‘an isolated antibody that specifically binds to
the polypeptide of SEQ ID NO:22’ . . . refers to an antibody that binds to a particular
epitope without binding to another epitope.” Br. 4 (emphasis in original). Thus,
according to Appellants:
Claim 28 . . . clearly refer[s] to an antibody that is able to bind to a
specific epitope of the PRO 1325 polypeptide of SEQ ID NO:227
without cross reacting with other epitopes, including those found in the
sequence disclosed in Lal. . . . As a result of the requirement of
specific binding, the claims pending in this application do not
encompass antibodies that specifically bind to epitopes found in the
polypeptide of Lal. [Id.]
Appellants further argue:
[T]here may be antibodies that are capable of binding to epitopes
present in both the PRO1325 polypeptide and the Lal protein.
However, the present invention does not claim such antibodies. It is,
again, emphasized that the claimed antibodies would only bind to those
epitopes which are present in PRO1325 and not any other proteins,
including the Lal protein. Therefore, any antibody capable of
specifically binding to epitopes found in both PRO1325 and the protein
of Lal is not encompassed by the presently claimed antibodies. [Br. 6
(emphasis in original).]
With respect to this issue, the Examiner responds:
It is well-known in the art that antibodies cross-react with antigens on
more than one protein and this would need to be determined by a
competitive binding assay. . . . Two proteins which share almost
100% identity over 431 residues [such as is the case here] would be
expected to bind some of the same antibodies. . . .
. . . . The crux of Appellant's argument appears to be that if a
given antibody binds to a protein other than that of SEQ ID NO:227
then it is not encompassed by the claims. However, this is,
respectfully, not how "specific binding" is interpreted. Specific binding
cannot be viewed as an antibody which only binds a given protein, but,
if anything, one that has a higher affinity for one protein over another.
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