Appeal 2007-2523
Application 10/370,749
Table 6), D280N (asparagine substituted for aspartic acid, Table 8) and
D280S (serine substituted for aspartic acid, Table 8)” (id.)
Specifically, Appellants argue that, “[e]ven though Column 12 of
[Presta] lists the twenty amino acids known to be naturally occurring, the
patent clearly states that ‘amino acid substitution’ includes natural and non-
natural amino acids. Therefore, [Presta] identifies ‘amino acid substitution’
as the smallest preferred embodiment within the ‘amino acid modification’
genus, yet this subgenus is quite large indeed!” (Br. 11.) “Presta never
states that natural amino acids are a preferred subgenus of this immense
genus” (Reply Br. 2). Thus, Appellants argue, “the genus that was identified
- - amino acid substitutions - - is too large for one of skill in the field to
envisage each member” (Br. 11).
We reverse the rejection. Presta refers to “a variant of a parent
polypeptide comprising an Fc region, which variant mediates antibody-
dependent cell-mediated cytotoxicity (ADCC) in the presence of human
effector cells more effectively or binds an Fc gamma receptor (FcγR) with
better affinity, than the parent polypeptide and comprises at least one amino
acid modification in the Fc region” (Presta, col. 4, ll. 30-36). Presta states
that, “[b]y introducing the appropriate amino acid sequence modifications in
a parent Fc region, one can generate a variant Fc region which (a) mediates
antibody-dependent cell-mediated cytotoxicity (ADCC) in the presence of
human effector cells more effectively and/or (b) binds an Fc gamma receptor
(FcγR) with better affinity than the parent polypeptide” (id. at col. 21, ll. 60-
66 (emphasis added)). Presta states that, “[g]enerally, the modification
entails one or more amino acid substitutions” (id. at col. 19, ll. 47-48).
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