Appeal 2007-1633
Application 09/480,236
nonetheless held that the description was inadequate. The same holds true
here.
Accordingly, we affirm the rejection of claim 51 under the written
description provision of 35 U.S.C. § 112, first paragraph. According to
Appellants, “[t]he claims stand or fall together as to each ground of
rejection” (Br. 3). Accordingly, claims 52 and 53 fall together with claim
51.
Enablement:
Claims 50 and 51 stand rejected under the enablement provision 35
U.S.C. § 112, first paragraph. The claims stand or fall together, accordingly,
we limit our discussion to claim 51. The Examiner finds that Appellants’
disclosure fails to provide an enabling disclosure of “a recombinant
immunotoxin polypeptide comprising an antibody having a variable region
which is at least about 90% identical to the variable region of UCHT-1 and
is at least about 90% as effective as UCHT-1 for binding human CD3”
(Answer 4-5).
In this regard, the Examiner directs attention to Kussie and Chen to
demonstrate that the substitution of a single amino acid can totally ablate
antigen binding (Answer 5-6). Appellants agree (Br. 8). Nevertheless,
Appellants submit that while it may be labor-intensive and time-consuming,
their disclosure provides “suitable procedures for obtaining the
immunotoxins of the invention.” In this regard, Appellants assert that one
skilled in the art could easily determine whether or not a particular
polypeptide has 90% identity to the variable region of UCHT-1 using the
Bestfit program (Br. 8-9). We agree.
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