Appeal 2006-3020
Application 10/109,374
the scope of the broad recitation . . . does not provide written
description [for] all compounds which . . . ‘comprise an aryl
or heteroaryl alkyl ether’ as being LTB4 binding compounds.
. . . .
. . . [T]he recitation in the claims encompasses any
organic compound, including biomolecules, antibodies,
peptides, polymers, etc., which may have an aryl or
heteroaryl alkyl ether in any part of the compound. The
claims define the compound only by a moiety that may be
present thereon which was not envisioned at the time of
filing. . . . While . . . in some situations, a number of species
can be used to show support for a larger genus, this would
not hold true in this situation, given the genus being claimed
is almost unlimited in size . . . .
(Answer 3-4.)
Appellants respond:
The Specification describes the subject matter in many
ways. For example, a portion of the Detailed Description
states “[i]n one embodiment this invention is a radiolabeled
LTB4 antagonist radiopharmaceutical.” [Spec. 17: 0420.]
Elsewhere, the specification uses the term “binding agent”
which “means a radiopharmaceutical of this invention having
affinity for and capable of binding to LTB4.” . . .
. . . .
The term “aryl or heteroaryl alkyl ether” is not
explicitly used in the specification, but . . . “[A]dequate
description . . . does not require literal support for the
claimed invention.” Ex parte Parks, 30 USPQ2d 1234, 1236
(Bd. Pat. App. & Inter. 1993; emphasis [Appellants’]).
. . . .
. . . [T]he aryl or heteroaryl alkyl ether motif is
described throughout the specification, in structures,
examples, and formulas . . . .
. . . .
. . . Of the eighty-nine examples of reagents . . . only
one . . . fails to include an aryl or heteroaryl alkyl ether
portion. . . .
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