Appeal 2007-4148
Application 09/148,012
and preparation of receptor protein fragments (id. at 24-25). Finally, the
Specification describes a working example in which antibodies to “mSR-BI”
(murine SR-BI; id. at 40: 26) were raised and combined in vitro with
SR-BI-expressing adrenocortical cells to determine the effect of the antibody
on HDL uptake and steroid production (id. at 55-66).
Thus, the Specification does not describe any structural features that
are shared by compounds having the function of “inhibiting uptake, binding
or transport of cholesteryl ester by SR-BI.” The Specification describes two
polyclonal antibody preparations that contain antibodies to murine SR-BI.
The Specification discloses the amino acid sequence of murine SR-BI (SEQ
ID NO: 4), and therefore the disclosed antibodies are adequately described.
See Noelle v. Lederman, 355 F.3d 1343, 1349 (Fed. Cir. 2004).
However, the Specification describes no other specific compounds
having the function of “inhibiting uptake, binding or transport of cholesteryl
ester by SR-BI.” The present case is therefore analogous to Rochester. In
that case, the patent claimed a method of selectively inhibiting the enzyme
PGHS-2 (also known as COX-2) by “administering a non-steroidal
compound that selectively inhibits activity of the PGHS-2 gene product to a
human.” 358 F.3d at 918. The patent “described in detail how to make cells
that express either COX-1 or COX-2, but not both . . . , as well as ‘assays for
screening compounds, including peptides, polynucleotides, and small
organic molecules to identify those that inhibit the expression or activity of
the PGHS-2 gene product.[’]” Id. at 927.
The court held that the disclosure of screening assays and general
classes of compounds was not adequate to describe compounds having the
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