Appeal 2007-2864
Application 10/747,798
line 31. With respect to timed-release formulations,
formulations such as creams, ointments, tablets, suppositories,
etc. release their contents as the carriers break down over time,
and so are timed-release.
(Id. at 8-9.)
Appellant argues that “El-Deiry does not anticipate the claimed
invention because it does not expressly or inherently disclose administration
of a polynucleotide encoding a p53 polypeptide to a papillomavirus-
transformed cell.” (Br. 12.) According to Appellant “p53” is intended to
refer to the exemplified p53, which is human p53, as well as p53 from
another species, such as a mouse (id. at 13). Appellant argues that “in
contrast, El-Diery teaches that p73 is structurally and functionally dissimilar
to p53. For example, El-Deiry indicates that unlike p53, p73 is not targeted
for degradation in Ad-E6 infected cancer cells.” (Id.)
Page 14 of the Specification states that “[t]hroughout this application,
the term ‘p53’ is intended to refer to the exemplified p53 molecules as well
as all p53 homologues from other species.” (Specification 14.) As set forth
by Appellant, the exemplified p53 is human (Br. 13). We thus agree with
Appellant that “[o]ne of ordinary skill in the art would understand that if the
exemplified p53 molecule was a human p53, then in the context of the
present specification, ‘all p53 homologues from other species’ refers to p53
molecules from species other than human p53. Thus, the ordinary artisan
would understand that ‘p53’ as used in the present specification refers to
human p53 and p53 molecules from other species.” (Reply Br. 9-10.) The
rejection as to El-Deiry, who teaches the use of a p73 protein that is
endogenous to the species being treated, such as a human (El-Deiry at p. 15),
is thus reversed.
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