Appeal 2007-2517
Application 10/311,196
45 USPQ2d 1498, 1502-1503 (Fed. Cir. 1998). Here, the instant application
does not describe the claimed limitation that the polypeptide has taste-
specific activity. Consequently, we agree with the Examiner that recited
limitation is new matter. We affirm the rejection of claim 1; claims 2-7, 9,
11, 16, and 17 fall with claim 1 because they were not separately argued.
SUMMARY
We affirm the rejections of claims 1-7, 9, 11, 16, and 17 for lack of
utility under 35 U.S.C § 101; for failing to teach how to use the claimed
invention under 35 U.S.C § 112, first paragraph; and for lack of written
description under 35 U.S.C § 112, first paragraph.
OTHER ISSUES
Appellants’ have claimed priority dates of a series of U.S. provisional
applications filed from June 16, 2000 to July 19, 2000 (Request for Updated
Filing Receipt, dated May 9, 2005; Amendment to Specification, dated May
9, 2005). Based on 35 U.S.C. § 119(e), it is presumed that this constitutes a
claim for benefit of the filing dates of the provisional applications for the
purpose of determining what is prior art to the claims of the instant
application. However, in the Reply Brief, Appellants’ state “[i]n addition to
Montmayeur et al. adopting the designation ‘T1R3’ for a mouse receptor for
sweet ligands, at least three additional references published before the
present application’s filing date used the designation ‘T1R3’ for a mouse
receptor for sweet ligands” (Reply Br. 2) (emphasis added). The three cited
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