Ex Parte Cuthbertson et al - Page 7

                Appeal No. 2007-1140                                                                         
                Application No. 10/753,729                                                                   

                by the formula recited in instant claim 1.  Appellants admit this by                         
                characterizing the claimed subject matter as a “selection application.”                      
                (Substitute Br. 5; Dec. ¶ 2.)  In other words, Cuthbertson’s formula I is                    
                broader than instant claim 1, permitting reporter (16, ll. 5-6) or biomodifier               
                moieties at either end of the molecule.                                                      
                      Level of skill in the pertinent art                                                    
                      The prior art teaches that it was conventional at the time the invention               
                was made to attach functional moieties to either end of an RGD peptide.  In                  
                addition to Cuthbertson’s teaching of the interchangeability of reporter and                 
                biomodifier positions, we find the following disclosures pertinent to this                   
                issue:                                                                                       
                      1)  Hart1 describes cyclic RGD peptides as vectors for transporting                    
                DNA in cells (p. 3, l. 6 to p. 4, l. 1).  The RGD peptide comprises a                        
                “polycationic component [which] may be linked at any position of” it.  (Hart                 
                at p. 8, ll. 9-10.)                                                                          
                      2)  Dean2 describes radiolabeled peptides (col. 4, l. 65 to col. 5, l. 5;              
                col. 6, l. 59).  Labeled RGD peptides are disclosed (col. 6, l. 59; Table                    
                spanning cols. 13-14).  The radiolabel can be incorporated at any position of                
                the peptide (col. 8, l. 24-36).                                                              
                      Based on this evidence, we consider it to have been commensurate                       
                with the level of ordinary skill in the art to chose and interchange positions               
                of functional groups in an RGD peptide.                                                      


                                                                                                            
                1 Hart, PCT Pub. No. WO 98/54347, Dec. 3, 1998.                                              
                2 Dean et al. (Dean), U.S. Pat. No. 5,965,107, Oct. 12, 1999.                                

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