Appeal 2006-3288
Application 10/316,761
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.” In re Spada, 911
F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (emphasis added).
Iovanna describes a human PAP protein represented by the amino acid
sequence A3, i.e., SEQ ID NO: 7 (Iovanna col. 6). There is no dispute that
“Iovanna’s SEQ ID NO: 7 and Appellants’ SEQ ID NO: 1 differ by 27
amino acids” and “[t]hese differences are not localized in a particular region
but are distributed throughout the sequence” (Brief 4). However, a direct
comparison of the amino termini of Iovanna’s SEQ ID NO: 7 and
Appellants’ SEQ ID NO: 1 reveals that the first 28 amino acids, at least, are
identical.
Iovanna also describes polyclonal and monoclonal antibodies raised
against “the protein corresponding to the A3 amino acid sequence” that
recognize the human PAP protein of SEQ ID NO: 7 (Iovanna col. 9, l. 51 to
col. 10, l. 30).
The Examiner contends that Iovanna anticipates the claimed invention
because “antibodies to the protein of . . . SEQ ID NO: 7 of the reference
would bind the protein of . . . SEQ ID NO: 1 of the instant application”
(Answer 3).
Appellants argue that “Iovanna’s hypothetical antibody does not
necessarily specifically bind Appellants’ SEQ ID NO: 1” (Brief 4), because
“Iovanna’s SEQ ID NO: 7 has only 84% sequence identity to Appellants’
SEQ ID NO: 1” (id. at 5), and “these differences in sequence mean that the
epitopes in each sequence may be different” (id.). Thus, Appellants contend
4
Page: Previous 1 2 3 4 5 6 7 Next
Last modified: September 9, 2013