Appeal 2007-1139
Application 10/052,664
establish that the skilled artisan would find function based on sequence
homology to be incredible.
As also noted by Appellants (Br. 8), the Specification teaches that
Npt2B is a human type II sodium phosphate co-transporter that provides for
the transport of sodium and phosphate ions from the intestinal lumen into the
intestinal epithelial cells, and does not require another ligand for activity.
Appellants rely on the Declaration filed under 37 C.F.R. § 1.132 of
Suryananrayana Sankurati (Declaration), dated February 18, 2004, which
states at paragraph 3:
Using the procedure that was disclosed in the application (page
29 line 25 to page 30 line 19), we were able to show that CHO
cells which express the human Npt2B protein of this invention
were able to transport phosphate ions as measured by the
amount of radioactive phosphate taken up by the cells, whereas
CHO cells not expressing Npt2B did not transport phosphate.
This result, graphically represented in Fig. 1, clearly
demonstrated that Npt2B is a phosphate transporter.
The Declaration also presents data demonstrating that the transporter
requires the presence of sodium (see Figure 2 of the Declaration), and that
“Km measurements for sodium and phosphate uptake for Npt2B were
remarkably similar to those obtained from intact intestinal membrane
vesicles (Declaration ¶4).
The Examiner dismisses the Declaration, stating that “[t]he inclusion
in the family of sodium phosphate co-transporter does not constitute either a
specific and substantial asserted utility or a well-established utility for the
claimed Npt2B polypeptide,” asserting that is “analogous to the reasoning
that all proteins/nucleic acids of sodium phosphate co-transporter proteins
can be used as markers on a gel.” (Answer 22.) According to the Examiner,
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