Appeal 2007-0856
Application 09/281,474
acid components. Thus, Appellant[s’] use of the term ‘peptide’
encompasses both peptide and non-peptide targeting moieties.
(Id. at 9.)
Appellants argue that Harris “relates to a compound, comprising a
targeting moiety and a chelator, wherein the targeting moiety is a quinolone
nonpeptide. In contrast, the Appellants[’] claims recite that the targeting
moiety is a ‘peptide or peptidomimetic.’” (Br. 10.) Similarly, Appellants
argue that Cheesman “relates to a compound, comprising a targeting moiety
and a chelator, wherein the targeting moiety is a benzodiazepine nonpeptide.
In contrast, the Appellants[’] claims recite that the targeting moiety is a
‘peptide or peptidomimetic.’” (Br. 11.)
We conclude that the Examiner has not set forth a prima facie case
that the claims of Harris and Cheesman are patentably indistinct from the
instant claims. As noted by Appellants, claim 1 of Harris and Cheesman
recite a targeting moiety that is a quinolone nonpeptide and a
benzodiazepine nonpeptide, respectively. Identifying the targeting moiety as
a quinolone nonpeptide or a benzodiazepine nonpeptide indicates that a
quinolone or a benzodiazepine that is not part of a peptide can be used to
target the receptor. Granted, Harris and Cheesman define the term
“nonpeptide” as meaning “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” (Harris, col. 67, ll. 6-
10; Cheesman, col. 28, ll. 14-17). However, we do not agree with the
Examiner that the recitation of a quinolone nonpeptide or a benzodiazepine
nonpeptide targeting moiety suggests a targeting moiety that is a peptide,
even if the peptide can include non-peptide components.
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