Appeal 2007-0866
Application 09/993,234
Given the foregoing contentions of the Appellant and Examiner, we
find the issue on appeal is two fold:
1. Does Yu teach an isolated nucleic acid that encodes a polypeptide
that comprises an amino acid sequence that corresponds to any one
of
(a) 1 to 417,
(b) 25 to 417,
(c) 25 to 198, and
(d) 338 to 417
of SEQ ID NO: 6, or a biologically active variant thereof, and if so,
does ‘285 support this teaching in Yu?
2. If so, does Yu disclose that this nucleic acid encodes a polypeptide
that is Apo-3 or a biologically active variant thereof?
Issue 1:
We find that Yu teaches a nucleic acid sequence (SEQ ID NO: 1) that
encodes a polypeptide (Yu, col. 4, l. 67 – col. 5, l. 1). Yu identifies the
protein (SEQ ID NO: 2) encoded by the nucleic acid sequence set forth in
SEQ ID NO: 1 as DD3-VI, formerly named DDCR (Yu, col. 4, ll. 56-57 and
col. 5, ll. 59-62). We find that Yu’s SEQ ID NO: 1 is the same as SEQ ID
NO: 1 of ‘285. SEQ ID NO: 1 of both Yu and ‘285 teach an isolated nucleic
acid encoding a polypeptide comprising amino acid residues (see, e.g., ‘285
67: SEQ ID NO: 1, residues 36-198) that are identical to residues 25-198 of
Appellant’s SEQ ID NO: 6, or a biologically active variant thereof.
Therefore, issue 1 is answered in the affirmative.
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