Appeal No. 2007-0079 Page 12
Application No. 10/159,749
that VEGF a member of the PDGF family exhibits different activity than PDGF;
and that Kopchick teach that a 198 amino acid vertebrate growth hormone
“becomes an antagonist (inhibitor of growth) when a single amino acid is
changed. . . . Even 99% homology does not allow predictability in this instance.”
Answer, page 7. In our opinion, none of these references support the
enablement rejection.
Skolnick discusses the inadequacy of predicting protein function based on
sequence. See e.g., Skolnick, page 34, column 2. This is, however, not required
to practice the full scope of appellants’ claimed invention. To the contrary, we
begin with two full length proteins of defined sequence and functional activity as
set forth in the claims. Deletions are then made from these two proteins to
produce deletion mutants which retain the functional activity as set forth in the
claims. Those mutants what do not retain this functional activity are not
encompassed by the claimed invention. Accordingly, we do not find the
examiner’s reliance on Skolnick persuasive.
As the examiner points out (Answer, bridging paragraph, pages 10-11),
Vukecevic and Tischer discuss the different activities exhibited by different
proteins in a particular protein family. This also is not what appellants’ have
claimed. Instead, appellants have provided two sequences to which all of the
claimed deletion mutants are derived. Accordingly, the issue of whether different
proteins within a particular protein family will exhibit different activity is not at
issue in this case. Further, appellants provide thirty exemplary deletion mutants
within the scope of the claimed invention which possess the activity required by
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