Appeal 2007-0856
Application 09/281,474
arms, we conclude that spacer arms within the linking group formula of
claim 1 would have been obvious for the reasons discussed above.
We conclude that the Examiner has set forth a prima facie case that
claims 1, 52, and 53 would have been obvious over Palladino in view of
Sharma, which Appellants have not rebutted. We therefore affirm the
rejection of claims 1, 52, and 53 under 35 U.S.C. § 103. Claims 2, 12-15,
17, 19-21, 25, 27, 28, 31-35, and 48-50 depend from and therefore fall with
claim 1.
4. OBVIOUSNESS-TYPE DOUBLE PATENTING
Claims 1-10, 12-35, 48-50, 52, and 53 stand rejected under the
judicially-created doctrine of obviousness type double patenting over the
claims of Harris and Cheesman. The Examiner argues that the present
claims are not patentably distinct from the claims of Harris and Cheesman
because both the present claims and the patented claims “are directed to a
targeting moiety, chelator, peptide/non-peptide, optionally a metal, and
optionally, a linker” (Answer 3 and 4). Although the claims of Harris and
Cheesman recite that the targeting moiety is a non-peptide, the Examiner
argues that
the term ‘non-peptide’ means preferably less than three amide
bonds in the backbone core of the targeting moiety or
preferably less than three amino acids or amino acid mimetics
in the targeting moiety (see . . . [Cheesman], column 28,
lines 14-17; . . . and [Harris], column 67, lines 6-9). In the
instant invention, . . . the term ‘peptide’ is defined as a linear
compound that consists of two or more amino acids that are
linked by means of a peptide bond. In addition, Appellant[s]
disclose[] that the term ‘peptide’ also includes compounds
containing both peptide and non-peptide components such as
pseudopeptide or peptidomimetic residues or other non-amino
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