Appeal 2007-1623
Application 09/981,845
In summary, the Examiner has not asserted that the Specification does
not enable those skilled in the art to make peptides comprising SEQ ID NO:
11, and the Specification appears to enable a person skilled in the art to use
the peptide of SEQ ID NO: 11 to promote attachment and spreading of
osteoprogenitor cells via its interaction with the αvβ3 receptor. We therefore
reverse the rejection of claims 1, 2, 5, and 6.
However, we affirm the rejection of claim 3. The evidence of record
does not provide an adequate basis on which to conclude that the peptide of
SEQ ID NO: 11 is likely to bind to any of the receptors recited in claim 3.
The results shown in the Specification’s Table 8 (pages 54-55), in fact, show
that antibodies to the CD44 receptor do not affect the cell attachment and
cell spreading activity of SEQ ID NO: 15. Based on those results, those
skilled in the art would expect that the peptides of SEQ ID NO: 15 and SEQ
ID NO: 11 does not bind to the CD44 receptor.
The Specification provides no other persuasive evidence that the
osteopontin subsequence shared by SEQ ID NO: 11 and SEQ ID NO: 15
interacts with any of the receptors listed in claim 3. Therefore, we agree
with the Examiner that, with respect to the embodiment of the claims that is
directed to the peptide of SEQ ID NO: 11, undue experimentation would be
required to make and use peptides comprising SEQ ID NO: 11 that bind to at
least one of the receptors listed in claim 3.
OTHER ISSUES
On return of this application, the Examiner should consider whether
the scope of the claims is reasonably definite. Specifically, the preamble of
the claim recites an “active osteopontin peptide fragment.” The
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