Appeal 2007-1149
Application 10/066,273
understood” (Answer 13) and that “although pericytes play [an] important
role in angiogenesis, their role in formation of tumor neovasculature is
currently not fully understood” (id. at 9-10).
We agree that Diaz-Flores and Ozerdem suggest that the role of
pericytes in angiogenesis was not entirely elucidated at the time of
Appellants’ invention. However, both of these references confirm that
pericytes are involved in angiogenesis (Diaz-Flores 809, “Events of new
blood vessel formation”; Ozerdem 246 (“we observe pericytes and
endothelial cells working in concert to form angiogenic microvessels”)). In
addition, the Examiner has not pointed to any teaching in either of these
references indicating that inducers of c-fos expression do not stimulate
angiogenesis.
We conclude that the Examiner has not provided a sufficient basis to
reasonably doubt that “[i]nduction of c-fos expression in pericytes is . . .
indicative of the induction of angiogenesis” or that “polypeptides capable of
inducing the expression of c-fos would be expected to be useful for the
treatment of conditions where induced angiogenesis would be beneficial”
(Specification 142). Therefore, we agree with Appellants that the Examiner
has not provided an adequate basis to reasonably doubt the assertion that
“the claimed antibodies are useful in the purification of PRO444
polypeptides, which in turn have utility . . . as stimulators of angiogenesis”
(Br. 7). We therefore reverse the utility rejection of claims 40-44.
4. ENABLEMENT
Claims 40-44 stand rejected under 35 U.S.C. § 112, first paragraph,
because, in view of the lack of utility, “one skilled in the art . . . would not
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