Appeal 2007-1633
Application 09/480,236
possession of a polypeptide encoded by one or more nucleotide sequences
which hybridize to SEQ ID NO:2” (Answer 4). Contrary to the Examiner’s
assertion, however, there is no requirement that “a polypeptide be encoded
by one or more nucleotide sequences which hybridize to SEQ ID NO:2” in
any of Appellants’ claims 51-53 or claims 35-36 from which they depend.
Accordingly, we find the Examiner’s assertion to be irrelevant to claims 51-
53. The Examiner also finds that “the specification provides an insufficient
written description of antibodies having a variable region which is at least
99% identical to the variable region of UCHT-I and is at least 95% as
effective on a molar basis in competing with UCHT-1” (id.). As with the
Examiner’s foregoing assertion, the percent identity and percent
effectiveness cited by the Examiner are not present in the rejected claims.
Apparently, recognizing the lack of precision in his statement of the
rejection, the Examiner states that “‘[a]s understood by Appellants, there are
two aspects to the present ground of rejection, the first concerns the 90%
identity language and the second concerns the 90% effectiveness language.’”
(Answer 9). According to the Examiner “[t]hese are precisely the aspects
necessitating the rejection.” Therefore, notwithstanding the statement of the
Examiner’s rejection, the Examiner’s concern is the language in claim 51
concerning the phrases “at least 90% identical,” and “at least about 90% as
effective” (id.; claim 51).
Claims 52 and 53 depend from claim 51. Claim 511 is drawn to a
recombinant immunotoxin polypeptide or a pharmaceutically acceptable salt
thereof that comprises a CD3-binding domain and a Pseudomonas exotoxin
(PE) mutant. The claim requires that the PE mutant has ADP-ribosylating
1 Claim 51 depends from claim 36, which depends from claim 35.
4
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