Appeal 2007-1139
Application 10/052,664
no experimental data provided as to the specific functionality of the claimed
Npt2B,” nor is there a “disclosure of the specific ligands that activate or bind
it.” (Id.) Because there is no disclosure as to the specific ligands, the
Examiner concludes that the claimed polypeptide is an “orphan receptor,”
and thus there is no utility for a ligand having no known function that binds
to an Npt2B of no known function (Id. at 6). Thus, the Examiner asserts,
“[t]he inclusion in the family of sodium phosphate co-transporters does not
constitute either a specific and substantial asserted utility or a well-
established utility for the claimed Npt2Br protein.” (Id.)
The Examiner argues that while the Specification teaches that the
claimed Npt2B polypeptide is useful for applications such as research,
diagnostic and therapeutic agent screening applications, and methods of
treatment, “[t]here is no clear nexus between any treatable diseases/disorders
and use of the claimed Npt2B,” and “[t]here is no disclosure of the specific
activity of the claimed sodium phosphate co-transporter or how to assay for
said activity.” (Id. at 4-5.)
Appellants argue that “the Examiner has not met the burden of
presenting a prima facie case that the claimed invention lacks patentable
utility because he a) failed to provide any evidence or factual reasons why
one skilled in the art would reasonably doubt the asserted utilities of the
claimed Npt2B polypeptide and b) misinterpreted the facts in the filed of the
art and concerning factual statements contained in the specification.” (Br.2
6.)
2 All references to the Brief (Br.) are to the Appeal Brief dated September
28, 2005.
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