Appeal 2007-2523
Application 10/370,749
2. PRIOR ART
The Examiner relies on the following reference:
Presta US 6,737,056 May 18, 2004
3. ANTICIPATION
Claims 1-3, 5-8, and 10 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Presta. The Examiner finds that “Presta teaches . . . a
polypeptide (e.g. antibody or immunoadhesin) comprising a variant Fc
region with higher binding affinity to FcγR including FcγRIII and an amino
acid substitution at positions such as 280 in the CH2 region for improved
antibody-dependent cell-mediate[d] cytotoxicity” (Answer 4). The
Examiner also finds that “Presta defines that the amino acid substitution
refers to the replacement of [an] existing amino acid residue in a
predetermined amino acid sequence with another different amino acid
resid[u]e including histidine, glutamine, or tyrosine” (id.). In addition, the
Examiner finds that “Presta teaches that the polypeptide comprising a
variant Fc region can be formulated into [a] composition for diagnostic and
therapeutic applications” (id.).
Appellants argue that Presta “neither expressly discloses nor clearly
names histidine, glutamine, or tyrosine as species within the immense genus
set forth as ‘amino acid modifications’ for position 280, nor does [Presta]
ever expressly disclose or clearly name histidine, glutamine or tyrosine as
members of the smallest identified preferred subgenus, ‘amino acid
substitution’” (Br. 10). Instead, Appellants argue that the “only species for
modified amino acids at position 280 ever clearly named within [Presta] are
D280A (alanine amino acid substituted for aspartic acid amino acid,
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