Appeal 2007-4214
Application 10/330,372
Co., v. TEVA Pharmaceuticals USA, Inc., 395 F.3d 1364, 1369-70, 73
USPQ2d 1641, 1646 (Fed. Cir. 2005).
The relevant part of the Specification appears to be page 9, at lines 6-
24. That portion of the Specification states:
A polypeptide of the present invention can also have
100% or less amino acid sequence identity to the amino acid
sequence set forth in Fig. 1 (SEQ ID NO:2). For the purposes
of the following discussion: Sequence identity means that the
same nucleotide or amino acid which is found in the sequence
set forth in Fig. 1 (nucleotide sequence SEQ ID NO: 1; amino
acid sequence SEQ ID NO:2) is found at the corresponding
position of the compared sequence(s) (e.g.. SEQ ID NOS: 3-5).
A polypeptide having less than 100% sequence identity to the
amino acid sequence set forth in Fig. 1 (SEQ ID NO:2) can
contain various substitutions from the naturally-occurring
sequences, including homologous and non-homologous amino
acid substitutions. See below for examples of homologous
amino acid substitution. The sum of the identical and
homologous residues divided by the total number of residues in
the sequence over which the Chp polypeptide is compared is
equal to the percent sequence similarity. For purposes of
calculating sequence identity and similarity, the compared
sequences can be aligned and calculated according to any
desired method, algorithm, computer program, etc., including,
e.g., FASTA, BLASTA. A polypeptide having less than 100%
amino acid sequence identity to the amino acid sequence of Fig.
1 (SEQ ID NO: 2) can have about 99%, 98%, 97%, 95%, 90%,
70%, or as low as about 53% sequence identity. A preferred
amount of amino acid sequence identity is about 87% or more,
e.g., about 88%, 89%.
(Specification 9 (underlined portions correspond to the Amendment to the
Specification dated March 9, 2006) (emphasis added).)
Both the Examiner and Appellant appear to agree that is the definition
by which sequence identity is to be determined (Br. 15-17; Answer 6). The
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