Appeal 2007-1623
Application 09/981,845
enablement; what is required is that the amount of experimentation ‘must not
be unduly extensive.’” PPG Indus. Inc. v. Guardian Indus. Corp., 75 F.3d
1558, 1564 (Fed. Cir. 1996).
Here, the claims only require that the claimed peptide interact with at
least one of the listed receptors. The Specification shows that SEQ ID NO:
11 and SEQ ID NO: 15 share the same osteopontin subsequence, and that
antibodies to the αvβ3 receptor block the cell attachment and cell spreading
activity of SEQ ID NO: 15. Based on these data, it is reasonable to conclude
that SEQ ID NO: 15 binds to the αvβ3 receptor and, based on structural
similarity, it is reasonable to expect that SEQ ID NO: 11 does, too. Thus,
the evidence is adequate to show that the peptide having the amino acid
sequence shown in SEQ ID NO: 11 binds to at least one of the integrin
receptors recited in claim 1. No more is required to enable claim 1 (to the
extent it has been examined following the election-of-species requirement).
Similarly, claim 6 only requires that the peptide promote attachment
and spread of one of the listed types of cells. The Specification discloses
that the peptide of SEQ ID NO: 11 promotes attachment and spreading of
osteoprogenitor cells, which is one of the listed types of cells. Again, that is
all the claim requires with respect to SEQ ID NO: 11. As long as the full
scope of the claim is enabled by the disclosure, a patent application need
only disclose one method of making and using a claimed invention in order
to satisfy the enablement requirement. See Johns Hopkins Univ. v. Cellpro
Inc., 152 F.3d 1342, 1361 (Fed. Cir. 1998) (“The enablement requirement is
met if the description enables any mode of making and using the
invention.”).
6
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