Appeal 2007-0866
Application 09/993,234
3. Page 67 of Yu’s Provisional Application No. 60/013,285 (‘285), filed
March 12, 1996 “has support for the nucleic acid encoding the amino acid
residues” set forth in Yu’s patent (Answer 4).
4. A “sequence alignment provided with the Office action mailed on
10/07/2003” demonstrates that Yu’s SEQ ID NO: 1 encodes a polypeptide
comprising amino acid residues 25-198 of Appellant’s SEQ ID NO: 6.
In response, Appellant asserts that:
A1. For the purposes of this appeal, the earliest effective filing date of the
claimed subject matter is September 23, 1996 (Br. 5).
A2. Yu’s ‘285 Provisional Application is the only application in Yu’s
lineage that “pre-dates the priority date currently accorded the pending
claims” (id.).
A3. ‘285 only discloses a sequence for a polypeptide identified as DR3-V1
or DDCR (id.).
A4. DR3-V1 “does not correspond to the Apo-3 polypeptide in overall
sequence or the particular regions identified in the present claims” (id.)4.
A5. “the signal peptides of DR3-V1 and Apo-3 are very different when
aligned from the first amino acid residue of each polypeptide” (Br. 6).
A6. “there is no indication in the ‘285 application that the deduced DR3-V1
polypeptide should be compared with other proteins, if at all, in any other
way than from the first amino acid residue” (id.).
4 We recognize Appellant’s admission that “[t]he sequence the Appellant
presented in the Appeal Brief appears to have omitted the Gln residue at
position 25 and thus shifted the remaining residues on position” (Reply Br.,
third paragraph of “REMARKS” section).
5
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