Appeal 2007-4214
Application 10/330,372
disagreement appears to be how the language “by the total number of
residues in the sequence over which the Chp polypeptide is compared,” i.e.,
the denominator of the equation by which sequence identity is determined.
According to the Examiner, that number is always 236 amino acids (see,
e.g., Answer 7), and according to Appellants that number is the number of
residues of the overlap region (see, e.g., Br. 19-20). Appellants present
FASTA comparisons2 comparing SEQ ID NOs:2, 6, 7, 8, 9, 12, and 13 to
SEQ ID NO:2, in which 100% sequence identity is obtained over the overlap
region.
We think Appellants have the better argument. The FASTA
comparisons submitted by Appellants demonstrate that it is not repugnant in
the art to determine sequence identity based on the number of residues in the
overlap region. In addition, as noted above, the Specification defines the
denominator as “the total number of residues in the sequence over which the
Chp polypeptide is compared.” The Examiner’s interpretation reads out the
portion “over which the Chp polypeptide is compared.”
The Examiner appears to be concerned with the breadth of the claims
if Appellants’ definition were accepted. However, “breadth is not to be
equated with indefiniteness.” In re Miller, 441 F.2d 689, 693, 169 USPQ
597, 600 (CCPA 1971); see also In re Hyatt, 708 F.2d 712, 714-15, 218
USPQ 195, 197 (Fed. Cir. 1983).
2 The FASTA comparisons were presented to the Examiner in a
Supplemental Paper submitted on August 8, 2006, date stamped December
21, 2006.
5
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013