Appeal 2007-1621
Application 10/721,839
nonapeptide 18 with nonapeptide 1 results in a sequence identical to SEQ ID
NO: 32, when the same circular peptide allowance is made.2
Thus, one of ordinary skill would have recognized that, by following
Lehrer’s explicit directions for making retrocyclins, one would obtain a set
of retrocyclins that included peptides having SEQ ID NOS: 31 and 32.
Because Lehrer teaches “using retrocyclin . . . or a retrocyclin analog to
prevent or treat infection, for example by an enveloped virus” (Lehrer 6), we
agree with the Examiner that one of ordinary skill would have considered it
obvious to contact peptides having SEQ ID NOS: 31 or 32 with an
enveloped virus to reduce the virus’ infectivity.
Appellants argue that, because “findings of fact by the Board of Patent
Appeals and Interferences must be supported by ‘substantial evidence’
within the record . . . , it necessarily follows that an Examiner’s position on
Appeal must be supported by ‘substantial evidence’ within the record in
order to be upheld” by the Board (Br. 3,3 citing In re Gartside, 203 F.3d
1305, 1315, 53 USPQ2d 1769, 1775 (Fed. Cir. 2000)).
We do not agree. Gartside only applies to review of the decisions of
this board by the Court of Appeals for the Federal Circuit. See Gartside,
203 F.3d at 1315, 53 USPQ2d at 1775 (“‘[S]ubstantial evidence’ review
Thus, the actual combination of peptides resulting in SEQ ID NO: 31 is
nonapeptides 27 and 1.
2 Lehrer’s nonapeptide 18 has the sequence RCICTRGFC (Lehrer 8). The
Examiner’s comparison of “Lehrer 18 and 34” to SEQ ID NO: 32
incorrectly shows that Lehrer’s nonapeptide 18 has an L at the third position
(Answer 5; see position “6” in the comparison of Lehrer 18 and 34 to SEQ
ID NO: 32).
3 Appeal Brief filed October 10, 2006.
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