Appeal No. 2007-1140
Application No. 10/753,729
considered to conflict with the instant claims. Appellants have taken it be
the claims of U.S. Pat. Pub. 2003/0204049 which corresponds to the ‘575
Application (Substitute Br. 10). However, the published claims were
amended in the co-pending application. In particular, the N-terminus of the
peptide compound claimed in the co-pending ‘575 Application does not
specify that it can be a reporter moiety (dated Sept. 18, 2006), a fact upon
which the § 103 rejection over Cuthbertson is based. See supra on p. 7.
Consequently, we vacate this rejection and remand to the Examiner to
determine whether an obvious-type double-patenting rejection is appropriate
in view of the currently pending claims of the co-pending application.
OTHER ISSUES
Upon return of the application to the technology center, the Examiner
should reconsider the patentability of the subject matter of claims 12, 19,
and 21, particularly in view of the new ground of rejection set forth in this
decision.
With respect to claim 12, the Examiner should determine whether the
chelating group disclosed in Cuthbertson at 11 is the same as the structure
recited in the claim or an obvious variant of it.
Claim 19 recites that the antineoplastic agent of claim 18 is selected
from a list of known antineoplastic agents. The Examiner should determine
whether this subject is obvious over of Cuthbertson in view of the disclosure
in WO 98/10795 cited on 5: 14-19 that doxorubicin attached to an RGD
peptide has been used to target drugs.
12
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