Ex Parte RAJOPADHYE et al - Page 11

                 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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