Appeal No. 2007-0057
Application No. 10/174,586
Tang discloses a sequence identical to SEQ ID NO:32 and a chimeric
polypeptide comprising it. Rather, Appellants argue that Lin, Strausberg,
and Tang were published after the earliest priority date claimed for the
instant claims, and are therefore not prior art. (Br. 15, 16.)
We will affirm the rejection. “It is elementary patent law that a patent
application is entitled to the benefit of the filing date of an earlier filed
application only if the disclosure of the earlier application provides support
for the claims of the later application, as required by 35 U.S.C. § 112.” In re
Chu, 66 F.3d 292, 297, 36 USPQ2d 1089, 1093 (Fed. Cir. 1995).
For the reasons discussed above, neither the instant application nor
any of the earlier-filed applications discloses a utility for the claimed
polypeptides sufficient to satisfy the requirements of § 101. Ipso facto, none
of the earlier-filed applications provides a disclosure sufficient to satisfy the
requirements of § 112, first paragraph, and none can be relied on for priority
under § 120.
The effective filing date of the present application is its actual filing
date: June 18, 2002. Lin, Strausberg, and Tang qualify as prior art and
Appellants do not dispute that they disclose the amino acid sequence of SEQ
ID NO:32. The references therefore anticipate claim 30. Claims 25-29, 31,
32, and 35 fall with claim 30.
5. ANTICIPATION BY MAO
Claims 25-28 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Mao.8 The Examiner reasons that Mao teaches a sequence having
8 Mao et al., GenBank ID No. Q9H3L1 (April 1998).
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